R v Ryan - [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

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.
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.
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).
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.
On 24 August 2012, the defendant was sentenced for the 2008 Offences and the 2011 Offences. That is the sentence referred to in para [3] above.
On 12 October 2012, following police analysis of the computers seized in May 2012, the defendant was charged with 29 counts of breaching bail, in addition to the original charges referred to in para [11] herein. The Director has indicated that the defendant is to be further charged with three counts of making a communication for a prurient purpose intending to make a child amenable to sexual activity, six counts of taking steps towards accessing child pornography, five counts of obtaining child pornography, two counts of aggravated possessing child pornography and two counts of possessing child pornography (“the 2012 Charges”). It is unclear how the defendant will plead to those charges.
Sentencing remarks
The Judge explained the history of the matter and the reasons why the sentencing submissions and sentencing had been delayed for over four years from when the defendant was first arrested. There were repeated delays in analysing material, first in relation to the 2011 Offences, and then in relation to the 2012 Charges. The Court was informed that, until the material the subject of those charges had been analysed, the prosecution in respect of them could not proceed.
Once the analysis of the 2011 Offences material had been completed and the defendant had pleaded guilty, both counsel requested the Judge sentence the defendant for the 2008 Offences and the 2011 Offences. The Judge described this as a highly unsatisfactory situation. It would have been preferable if the 2012 Charges could also have been dealt with, but there had already been a lengthy delay and a further delay was unacceptable.
The Judge had regard to the pleas of guilty to the 2008 Offences and the 2011 Offences. The defendant had cooperated in the investigation.
The Judge observed that the defendant was an intelligent man who had a difficult early life which has restricted his ability to form normal relationships with adults.
The defendant had previously been convicted in 1994 of committing indecent acts with, or in the presence of, a child under the age of 16. In 2000 he was convicted of stalking. In 2009, he was placed on a bond for refusing to comply with the directions of a security officer and aggravated assault. No conviction was recorded for that offending.
The Judge considered that, having regard to a number of psychiatric reports, the defendant presented a moderate risk of re-offending. The Director submits that that conclusion was based on psychiatric reports which did not consider the 2011 Offences. The Director further submits that his conclusion was against the weight of evidence.
The defendant had first referred himself, at the request of Families SA, to Owenia House for treatment in October 2007. At that time, he expressed views supportive of child sexual offending. When he was advised that he was required to change some of his sexual behaviours, he declined and ceased attending for treatment. At the time, those who had assessed the defendant considered he was at risk of engaging in sexual offending behaviour.
In 2011, he again attended Owenia House and actively engaged in treatment and rehabilitation programs. He was regarded as a good candidate for treatment.
At the time of sentencing, treatment at Owenia House was not possible due to the possibility of imminent incarceration, because treatment is not provided to persons in custody.
The Judge observed that the protection of young people must be the paramount consideration in sentencing. He said that it was in the interests of both the defendant and society that the defendant resume treatment at Owenia House at the earliest opportunity. He noted that the defendant had been in custody for a little over two months, and that this had had a salutary effect on him. The Judge imposed one sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), of 18 months’ imprisonment, with a four month non-parole period, to commence on 20 June 2012. He declined to suspend the sentence.
The ground of appeal
The Director submits that the sentencing Judge made various errors. As a consequence, the head sentence and non-parole period imposed was so manifestly inadequate as to amount to an error of principle.
Crown appeals
In R v Nemer,[4] Doyle CJ summarised the principles that apply to an application by the Director on the grounds of a manifestly inadequate sentence. He said:[5]
…The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[citations omitted.]
[4] R v Nemer (2003) 87 SASR 168.
[5] (2003) 87 SASR 168, 172.
The Court should grant leave to the Director to appeal against sentence “only in the rare and exceptional case.”[6] Permission to appeal will only be granted in order to determine a matter of principle, to correct an error of principle, to establish or maintain adequate standards of sentence or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle or would shock public confidence in the administration of justice if the sentence were not increased. Such an error may be inferred where the sentence is plainly wrong.
[6] Everett v The Queen (1994) 181 CLR 295, 299.
No indication of guilty pleas to the 2012 Charges
The Director submits that the sentencing Judge erred in finding that the defendant had indicated he was going to plead guilty to the 2012 Charges. Thus, it is submitted, the sentencing Judge gave the defendant more credit for his contrition than was due.
In his remarks, the sentencing Judge said repeatedly that the defendant had indicated he was going to plead guilty to the 2012 Charges. In sentencing, the Judge said:
To your credit, you have pleaded guilty to everything and you have indicated you wish to plead guilty to the other matters from May 2012…
As those matters have not been dealt with, I do not formally take them into account in an adverse way, but I indicate I have them in contemplation, as I frame what I think is a balanced sentence for you.
The defendant concedes that he had not indicated an intention to plead guilty to the 2012 Charges. The Judge was in error in so concluding. The defendant had indicated on a number of occasions an intention to plead guilty to the 2011 Offences. It appears the sentencing Judge has mistaken these indications as indications to plead guilty to the 2012 Charges. The defendant submits that this error was not material to the Judge’s determination.
The Judge was frustrated by the inability of the prosecution to finalise its enquiries in respect of the 2012 Charges. It would have been preferable if all matters could have been dealt with at the same time but, for factors which are beyond counsels’ or the Court’s ability to control, this could not occur. It was correct to proceed.
The psychiatric reports and the risk of reoffending
The Director submits that the sentencing Judge erred in finding that the defendant presented a moderate risk of reoffending. The Director submits that this finding is based on psychiatric reports, the authors of which did not refer to or discuss the 2011 Offences. The Director also submits that the sentencing Judge’s conclusion as to the defendant’s risk of reoffending is inconsistent with the observations in the psychiatric reports.
Seven psychiatric reports were before the sentencing Judge. All pre-date the ex officio Information and the defendant’s guilty pleas to the 2011 Offences. The first two reports were written after April 2011, when police had re-attended the defendant’s home and seized a further computer and USB drives but before the Court was made aware of the second investigation. Neither report mentions that seizure.
The third report was also written after April 2011 but before the Court was made aware of the second investigation by police. To assist in preparing that report, the author, Dr Begg, had met with the defendant on 4 August 2011. Despite this, the report does not appear to consider the April 2011 police investigation. Dr Begg obtained a history of the defendant. He was of the opinion that the defendant suffers from paedophilia. He stated that such diagnosis, interacting with antisocial aspects of the defendant’s history, suggests a significant risk of re-offending.
Dr Begg met with the defendant on 21 September 2011. He had reviewed a number of documents including the transcript of the Directions Hearing at which the April 2011 investigation was first disclosed to the Court. In his earlier report, he had concluded that the defendant posed a significant risk of reoffending. However, in his later report, Dr Begg concluded “[i]f the spectrum of risk is low, moderate and severe, then I would determine Mr Ryan to be at moderate risk of reoffending.” This conclusion was a downgrade from that expressed in the earlier report. No reason was proffered for this change. In the later report, Dr Begg referred to only one computer. Dr Begg did not refer to the April 2011 police investigation.
On 14 October 2011, Dr Erin Bulluss and Ms Leyna Bruggemann of Owenia House prepared a report. The report pre-dates the ex officio Information and the defendant’s guilty pleas to the 2011 Offences. The authors appear to have proceeded with a complete understanding of the extent of the defendant’s offending the subject of the 2011 Offences. The report described a number of risk factors which increase the probability of sexual recidivism. The defendant was found to possess all of those factors in varying degrees. The authors concluded:
Overall, Mr Ryan currently has a number of relevant risk factors. The more risk factors endorsed by Mr Ryan, the higher his risk of recidivism. However, the risk factors discussed above might be reduced, or better managed, through engagement in appropriate treatment.
Although the report recommended that Mr Ryan receive treatment, the authors also noted:
While Mr Ryan has attended Owenia House in a voluntary capacity, he has made a number of statements that lead the authors to question his investment in treatment. For example, he has spoken about “knowing how to play the system”, and that one of his motivations for attending Owenia House is his desire to avoid a custodial sentence.
On 24 April 2012, Ms Bruggemann reported on the defendant’s involvement in treatment programs at Owenia House. She observed that the defendant continues to believe that children are able to make adult-like decisions, that they can be sexual aggressors against adults, and that pornography does not objectify children, and is ‘pure fantasy’. The report concludes that the defendant “is yet to make a discernible change in his behaviour that could be considered as risk reducing other than reportedly having far less contact with children”. The report recommends that, given his entrenched attitudes, should the defendant remain in the community, he should continue attending Owenia House.
Dr Begg reported again on 13 July 2012. He had considered the report from Owenia House. He noted that the defendant had been incarcerated, but made no reference to the investigations. Dr Begg confirmed his previous opinion regarding the risk of the defendant re-offending.
The sentencing Judge’s conclusion as to that risk appears to have been based on the opinion of Dr Begg who did not consider the 2011 Offences. Indeed, none of the reports could properly have done so as none were prepared after the laying of the ex officio Information and guilty pleas to the 2011 Offences.
I agree with the submission of the Director that the Judge’s conclusion as to the risk of re-offending was against the weight of the evidence.
Sentencing for possession of child pornography - principles
In R v Oliver[7] and R v Gent,[8] a number of factors were identified which are relevant to the objective seriousness of the possession and distribution of child pornography.[9] They include:
·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;
·The number of images or items of material;
·Whether 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;
·The level of personal interest in the material, as perhaps evidenced by the way in which any collection is organised on a computer;
·Whether the possession or distribution involves a risk of accidental discovery by innocent computer users.
[7] [2003] 1 Cr App R 463.
[8] (2005) 162 A Crim R 29.
[9] See also Director of Public Prosecutions (Tas) v Latham [2009] TASSC 101, [34]; R v Padberg (2010) 107 SASR 386, 391-392; R v Hill [2011] SASCFC 109, [15]; R v Riddle [2012] SASCFC 82, [26]; R v Hayes [2012] SASCFC 96, [64].

In R v Padberg, Doyle CJ considered the sentencing principles which apply to child pornography cases:[10]
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.
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.
[10] (2010) 107 SASR 386, 390.
In R v McGaffin, Gray J stated:[11]
·General deterrence is of heightened significance;
·Child pornography is not a “victimless crime” and the damage caused to the child victims is recognised;
·Those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it;
·A range of factors may bear upon the objective seriousness of the offence, including the nature and content of the pornographic material – including the gravity of the sexual activity portrayed; the age of the children; the volume of the material; whether the offender derives any commercial benefit and whether the possession or importation is for the purpose of sale or further distribution; the sophistication, skill and planning involved; the duration of possession and the possibility of inadvertent access by others;
·Subjective factors such as age, prior criminal history and prospects of rehabilitation are of importance.
In the case of a person with no prior criminal history, that factor will have limited weight.
[11] (2010) 206 A Crim R 188.
In R v Hill, Sulan J, with whom Gray and Stanley JJ agreed, said:[12]
An analysis of the reasons in Padberg and McGaffin lead to the conclusion that all judges considered a custodial sentence for this type of offending was generally required, but there may be circumstances personal to an offender which would justify suspension of the sentence. It follows that it is not possible, nor in accordance with sentencing principles, to provide other than general guidance to sentencing courts which are required to consider this type of offending. In McGaffin, White J considered the defendant’s youth as well as his family support, and that he had embarked upon a successful program of rehabilitation to justify the imposition of a bond.
[12] [2011] SASCFC 109, [31].
Prior criminal history and offending on bail
The Director submits that the sentencing Judge gave insufficient weight to the defendant’s antecedents.
In sentencing for possession of child pornography offences, deterrence is the paramount consideration and limited weight is given to an offender’s prior good character. Often, those prosecuted have no prior convictions.[13] Where an offender has prior convictions, especially of a sexual nature, that factor must weigh heavily in considering the sentence to be passed. Protection of the community from sexual offenders is an important factor in sentencing for this type of offending.
[13] See, for example, R v Hill [2011] SASCFC 109; R v McGaffin [2010] SASCFC 22; R v Hayes [2012] SASCFC 96; R v Padberg (2010) 107 SASR 386; R v Riddle [2012] SASCFC 82.
The sentencing Judge noted the defendant’s prior convictions which included a conviction for indecent acts and stalking. Though stalking is not a sexual offence, Dr Begg’s opinion is that stalking involves sexual behaviours. I agree. It is clear that the defendant’s prior convictions render his offending more serious. The sentencing Judge gave insufficient weight to the defendant’s prior convictions.
The Director submits that the Judge gave insufficient weight to the fact the defendant committed the 2011 Offences while on bail for the 2008 Offences. The Judge stated that the 2011 Offences were more serious as they were committed while on bail, but the sentence imposed, particularly the non-parole period, does not reflect the seriousness of such repeated offending.
Rehabilitation in Owenia House
The Director submits that the sentencing Judge gave undue weight to the defendant’s prospects for rehabilitation. Based on the psychiatric reports, the sentencing Judge considered it was in the best interests of the community that the defendant recommence treatment at Owenia House as soon as possible. The sentencing Judge said that “[r]egrettably the Owenia House program is not available for persons in custody. So, unfortunately, since your arrest and denial of bail, you have been unable to continue to participate.” The Judge then set a “very much shorter than usual nonparole period” of four months.. He said “[i]t is the intention of this Court that you should be released on parole on 20 October 2012, granted bail on your other matter, and immediately resume treatment at Owenia House on your other matter.”
The Judge’s sentence was premised on a view that the defendant had good prospects of rehabilitation. The defendant submits that the finding that incarceration had a salutary effect on him supports the contention that he had good prospects for rehabilitation. The defendant submitted to the sentencing Judge that he sought treatment as early as March 2008 and that this was evidence of his prospects of rehabilitation. However, the fact that he continued to offend after this time suggests the treatment was not effective. The defendant has a prior conviction for an offence of a sexual nature. He committed the 2011 Offences while on bail for the 2008 Offences. Further, it appears that the defendant was not genuinely motivated towards rehabilitation but, rather, admitted himself to Owenia House in order to support a submission that he had embarked on a course to rehabilitate himself.
The sentencing Judge erred in his assessment of the defendant’s prospects of rehabilitation. A realistic assessment of the respondent’s persistent offending and his worrying lack of insight can only lead to the opposite conclusion to the one reached by the sentencing Judge. The sentence fails to reflect the seriousness of the offences and fails to reflect the need to deter others from falling into entrenched patterns of offending like the respondent’s. The sentence is manifestly inadequate.
File sharing
In his remarks, the sentencing Judge said:
You had not accessed any commercial paid sites and in that sense you did not support the commercial industry that produces these images. However, you did participate in a file sharing program which allows users to connect with other computers and share pictures and files.
The Director submits that the sentencing Judge erred in considering the use of file sharing methods to be a less serious form of the offences than where an offender accesses commercial websites. The Director submits that it makes no difference whether an offender pays for the material or not.
In Padberg, Doyle CJ said:[14]
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 pornography material and involving child pornography of the most serious kind. I am not referring to offences of this kind when payment is made by the offender for the material, nor when the offender has distributed the material to others, either freely or in return for payment. If those matters are present, they are likely to raise the offending to another level of seriousness. For offending of the present kind a period of imprisonment to be served will ordinarily be appropriate even though the offender has pleaded guilty and has no previous convictions. That is not to say that a wholly suspended sentence can never be appropriate in such cases. Each case has to be considered on its own facts.
[14] (2010) 107 SASR 386, 390.
While the payment of money for child pornography may be seen as an aggravating circumstance, it is trite to say that the absence of an aggravating circumstance is not mitigatory. The sentencing Judge erred in concluding that the use of file sharing methods, as opposed to commercial websites, was a mitigating factor. Indeed, in some circumstances, file sharing may be a method of obtaining child pornography which is considered an aggravating circumstance.
The evidence is that the defendant used multiple chat forums. A chat forum is a website where people can send text messages to one another and exchange files, including pictures and videos. There is evidence that the defendant partook in two varieties of chat forum. The first variety were forums frequented by people exchanging child pornography. The second variety were forums frequented by children or young people. There is evidence that on one occasion the defendant has chatted to a person who he thought was a young girl and obtained a picture of what he believed to be that girl’s breasts. There is further evidence that the defendant visited forums where persons who appear to be young girls upload pictures of themselves or other young girls. These pictures do not appear pornographic.
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.