(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
1 May 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION
Appeal against conviction imposed in the District Court for four counts of Obtaining Access to Child Pornography, five counts of Aggravated Obtaining Access to Child Pornography and one count of Possessing Child Pornography. The circumstance of aggravation alleged was that the children depicted in the material were younger than 14 years of age.
On 31 August 2011, the appellant’s house was searched by detectives from the Sexual Crime Investigation Branch. The appellant was not at home at the time. Electronic devices were seized, including three computer towers, one laptop and four USBs. They contained the material the subject of the charges, or, on the prosecution case, demonstrated that the appellant, and not someone else, had viewed or otherwise manipulated that material.
It was accepted that the material found on the appellant’s devices subject to the charges was child pornography pursuant to s 62 of the Criminal Law Consolidation Act 1935 (SA). The substantive issue at trial was whether it was the appellant who accessed or took possession of the charged items of child pornography which were on his various devices. The Trial Judge found in favour of the prosecution and accepted the above contention.
The appellant appeals both the conviction and sentence that:
1. The verdicts are ambiguous and/or uncertain.
2. The Learned Trial Judge (LTJ) erred as a matter of law in failing to provide adequate reasons for her decision.
2A. Alternatively as to ground 2, the LTJ erred as a matter of law in failing to –
2A.1. consider and make findings separately in relation to each element in issue in respect of each count on the information;
2A.2. identify how the expert evidence related to the issues that arose in respect of each count and have regard to that evidence in relation to the discharge of the burden of proof;
2A.3. have adequate regard to the defence case and the potential explanations for the circumstances relied upon by the prosecution, in the accused’s record of interview and in his evidence in respect of the elements in issue in respect of each count; and
2A.4. have adequate regard to the lay witness evidence in respect of proof of the elements in issue in respect of each count.
3. The LTJ erred in her directions as to the burden and standard of proof and its application to the evidence.
4. The LTJ erred in admitting the evidence of discreditable conduct contrary to the provision of section…
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.
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Details
AGLC
R v Sexton [2018] SASCFC 28
Case
[2018] SASCFC 28
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by the appellant, Mr Sexton, against his conviction and sentence for offences relating to child exploitation material. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Peek and Nicholson JJ. The dispute centred on the appellant's contention that the sentencing judge had erred in law by failing to provide adequate reasons for the sentence imposed, and that the sentence itself was manifestly excessive.
The primary legal issue before the Full Court was whether the sentencing judge had committed an error of law by failing to give sufficient reasons for the sentence imposed, thereby potentially entitling the appellant to a fresh sentencing discretion. A secondary issue, arising from the primary one, was whether the sentence imposed was manifestly excessive, requiring the Full Court to exercise its discretion afresh. The court also considered the weight to be given to the appellant's guilty plea and his lack of acceptance of responsibility in determining an appropriate sentence.
The Full Court, in dismissing the appeal, found that while the sentencing judge's reasons could have been more detailed, they were not so deficient as to constitute an error of law. The Chief Justice, with whom Peek and Nicholson JJ agreed, noted that the sentencing judge had considered relevant factors, including the nature of the offences, the appellant's failure to accept responsibility, and the need for personal deterrence. The court determined that the appellant was not entitled to a sentence reduction for pleading guilty, as this was not a basis for such a reduction in his specific circumstances. The number of images found was not considered a definitive factor in distinguishing cases, and the appellant's lack of remorse weighed against a lesser sentence.
Consequently, the Full Court dismissed both the appeal against conviction and the appeal against sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Mr Quick also agreed that it was not common for files with media file extensions to contain malware.Lay evidence The prosecution called a number of witnesses who had lived in or had been frequent visitors to the appellant’s homes. They testified that they had used his Wi-Fi or computers to study, to play games and to link to social media platforms. They were not warned by the appellant to stay away from any folders or programs. They saw other people use the appellant’s computers. One witness testified that he had used a P2P network over the appellant’s internet connection. The prosecution also called a customer of the appellant’s computer business. He took his computer to the appellant’s home to have it worked on. He had used the appellant’s computer on some occasions and had downloaded music on it. None of the witnesses ever saw anything inappropriate whilst using the appellant’s devices. None of them knowingly downloaded pornography or viruses.Agreement on content of files It was an agreed fact that the material in the files the subject of counts 1-10 was child exploitation material. The appellant’s counsel informed the Judge: …in relation to agreeing that all of the material the subject of counts 1-10 is in fact child exploitation material. I tell your Honour I haven’t viewed it and I know that the two solicitors before my current solicitors had viewed it. I just need to very quickly check with [Mr S] whether we can agree that fact. Obviously I’m reluctant to do it because I haven’t seen it. The Trial Judge questioned how the age of the depicted children was to be proved on those counts in which the aggravated offence was charged. Counsel submitted that Detective Fitzgerald’s testimony together with P1 satisfied the element of aggravation of the relevant offending. Counsel and the Trial Judge then had the following exchange:HER HONOUR: Do you have a disk with the material on it 1-10?MS MATTEO: No, I don’t because I agreed with those acting for [Mr S] previously that these could be agreed.MR JOLLY:That is confirmed. I accept what my friend says. I have seen notes that Mr Redmond made with respect to it. Obviously it is not something that I -HER HONOUR: I mean, short of there being actual agreement of each of the elements relative to the nature of the material being child pornography and the age and the category in which it sits according to the scale, then I will permit the prosecution to simply tender, subject to any objection have you, of course, the disk containing the materials and then I will make my own assessment.MR JOLLY:It is not a controversial issue, it is not a contentious issue. Obviously I don’t want to blurt something out without making 100% certain. That will take me 30 seconds and then my friend doesn’t need to trouble herself with having to submit a disk.HIS HONOUR: You will need to both carefully craft that agreed fact so that it covers all aspects of that.MR JOLLY:And all counts.HER HONOUR: All counts and all aspects of the elements of the offence in relation to it.MR JOLLY:Yes.HER HONOUR: How long do you want? Until 11.15?MR JOLLY:I just need, as I said, a couple of minutes with [Mr S]. I will give a nod to my friend, who can be assured of that and the crafting can then occur.
Decision
Reasons for decision
The appellant is not entitled to a sentence reduction for pleading guilty as was the case in many of the comparable cases relied on by his counsel. The appellant must be sentenced on the basis of the images found on his devices. However, the number of images found is not necessarily a sound basis on which to distinguish the factual circumstances of one case from another. On the one hand many images may be downloaded by the click of a key, but on the other hand many images may be deleted by some offenders before apprehension. Most importantly the failure of the appellant to accept responsibility gives little confidence of self‑motivated change. Accordingly personal deterrence is also relatively important. Accepting the error of law identified by the Director and exercising the sentencing discretion afresh, I would not impose a lesser sentence.Conclusion I would dismiss both the appeal against conviction and sentence. PEEK J: I would dismiss both appeals. I agree with the reasons of the Chief Justice. NICHOLSON J: I agree that both appeals should be dismissed for the reasons given by the Chief Justice.