R v Stropin - [2020] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v STROPIN
[2020] SADC 57
Ruling of His Honour Judge O'Sullivan
15 May 2020
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - AFTER COMMITTAL FOR SENTENCE ON PLEA OF GUILTY
The defendant was charged with two counts of possessing child exploitation material contrary to section 63A(1)(a) of the Criminal Law Consolidation Act 1935, one of which is an aggravated offence. On 7 January 2020, the defendant entered a plea of guilty to each count in the Magistrates Court and was committed for sentence to this court. At that time, the brief of evidence relating to the charges had not been received.
Approximately two weeks prior to his arraignment in the District Court, the defendant received advice from his lawyer that the material alleged to contain underaged children did not obviously depict children under the age of 17 years, and that this was a matter for the judge or jury.
The defendant makes an application pursuant to section 119 of the Criminal Procedure Act 1921 to change his plea from guilty to not guilty.
Held: Application refused.
There is no arguable defence that the video and images do not contain children under the age of 17, and in at least once case, a child under the age of 14.
Criminal Law Consolidation Act 1935 (SA); Criminal Procedure Act 1921 (SA), referred to.
R v Pugh [2005] SASC 427; R v Brooks (2007) 96 SASR 478; Maxwell v The Queen (1996) 184 CLR 501; R v Liberti (1991) 55 A Crim R 120; R v Clayton (1984) 35 SASR 232; Hinton v O’Dea (1977) 16 SASR 234; Meissner v The Queen (1995) 184 CLR 132; Jamieson v the Queen [2017] VSCA 140, considered.

R v STROPIN
[2020] SADC 57
Introduction

This is the defendant’s application dated 26 February 2020 pursuant to s 119 of the Criminal Procedure Act 1921 to change his plea from guilty to not guilty.
On 30 October 2019, the defendant was charged with two counts of being in possession of child exploitation material knowing of its pornographic nature contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935. The first count is alleged to be an aggravated offence on the basis that the defendant knew that the victim of the offence was under the age of 14 years. The second count is alleged to be a basic offence.
The matter first came before the Magistrates Court on 10 December 2019 at which time the defendant was unrepresented. The matter was adjourned to 19 March 2020 to allow for a preliminary brief to be filed and/ or charge determination to be made.
Prior to the committal process commencing, the matter was brought back before the Magistrates Court on 7 January 2020 at which time the defendant pleaded guilty to both counts. At that time, the defendant was represented. The defendant was committed for sentence to this Court on 6 March 2020.
At the time the defendant pleaded guilty, the brief of evidence relating to the charges that the defendant faced had not been received.
The prosecution opposes the defendant’s application to change his plea.
Elements of offence
First, the accused was in possession of the material said to be child exploitation material.
Second, that the material, the subject of each charge, comprises of or contains child exploitation material.
'Child exploitation material' is defined to mean material that describes or depicts a child under or apparently under the age of 17 years engaging in sexual activity or consists of or contains the image of or what appears to be the image of a child under or apparently under the age of 17 years or of the bodily parts of such a child and that is pornographic in nature. Material is of a pornographic nature if the material is intended or apparently intended to excite or gratify a sexual interest or to excite or gratify a sadistic or other perverted interest in violence or cruelty. In considering whether the material is pornographic, regard should be had to the contents and attributes of the material, the circumstances of its production and intended use viewed objectively, that is from the description of the material itself.[1]
[1] See R v Clarke (2008) 100 SASR 363; R v Morcom [2015] SASCFC 30.
Third, the accused knew of or was aware of the pornographic nature of the material.
An offence is aggravated if the offender committed the offence knowing that the victim of the offence was, at the time of the offence, under 14 years of age.
The only issue in this matter concerns whether the material the subject of each charge comprises of or contains child exploitation material.
Principles
Section 119 of the Criminal Procedure Act 1921 provides as follows:
119—Change of plea following committal for sentence
(1)A person who has been committed to a superior court for sentence in relation to a charge of an offence may only enter a change of plea in the superior court in relation to that charge with the permission of the court.
(2)If the superior court gives permission for a change of plea, the superior court may, if satisfied that the interests of justice require it to do so, remit the case to the Magistrates Court for preliminary examination of the charge.
(3)The change of plea must not be made the subject of any comment to the jury at a subsequent trial of the charge.
There is no authority dealing directly with s 119, although there is a significant body of common law.
The following principles may be extracted from various cases:
1A plea of guilty involves an admission by a defendant of all the essential elements of the offence;[2]
2Courts approach attempts to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This rests on the public interest in the finality of legal proceedings and that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of all of the necessary legal ingredients of the offence;[3]
3As a general rule, an informed and deliberate plea of guilty should be treated as final unless it can be established that a miscarriage of justice has occurred;[4]
4A person may plead guilty and be held to that plea although the plea is made “upon grounds which extend beyond that person’s belief in his guilt”;[5]
5The onus is on the defendant to establish grounds that to hold him or her to their plea of guilty would result in a miscarriage of justice;[6]
6There is every reason why an informed and deliberate guilty plea should be treated as final and that, after entry of such a plea, the defendant should face the necessity of persuading the Court that a miscarriage of justice would result if bound by the plea. That rule however rests upon an informed and deliberate plea, and not on a plea based, possibly, on an amorphous and uncritical understanding;[7]
7A court will not likely set aside a conviction founded on a plea of guilty and in general terms will only do so if it is established to the satisfaction to the court that the making of the plea has been induced by material mistake, or by some improper threat or promise on the part of a police officer or other person in authority and that but for the inducement to plead it would not have been made;[8]
8A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence;[9]
9Whereas the presence or absence of a genuine consciousness of guilt on the part of the defendant is a relevant consideration, the ultimate test is whether there has been a miscarriage of justice.[10]
[2]    R v Pugh [2005] SASC 427, [9] per Doyle CJ; R v Brooks (2007) 96 SASR 478, [68] per Doyle CJ quoting Maxwell v The Queen; (1996) 184 CLR 501, 510 per Dawson and McHugh JJ.
[3]    R v Liberti (1991) 55 A Crim R 120, 122 per Kirby P; R v Pugh [2005] SASC 427, [9] per Doyle CJ.
[4]    R v Pugh [2005] SASC 427, [195] per Gray J.
[5]    Meissner v The Queen (1995) 184 CLR 132, [157] per Dawson J.
[6]    R v Pugh [2005] SASC 427, [196] per Gray J.
[7]    R v Clayton (1984) 35 SASR 232, 234 per Wells J.
[8]    Hinton v O’Dea (1977) 16 SASR 234, 235 per Jacobs J.
[9]    Meissner v The Queen (1995) 184 CLR 132, 141, per Brennan, Toohey and McHugh JJ.
[10] R v Pugh [2005] SASC 427, [46], [53] per Doyle CJ.
Material relied upon
In support of his application the defendant relied upon his affidavit sworn 10 March 2020. He deposes that he had been released on parole and was reporting to Correctional Services during 2018 when his phone was seized by Correctional Services and the Police were telephoned.[11]
[11] Stropin Affidavit [1], [2].
In December 2018, he was returned to custody for a breach of his parole condition not to use alcohol. Whilst in Yatala Labour Prison, he was spoken to by detectives in August 2019, who told him they had found pictures of underage girls on his mobile telephone. He deposes[12] that he did not think that was the case but police told him they believed there were a number of images of girls under 17 years and a video containing images of a girl under 14 years.[13]
[12] Ibid [4].
[13] Ibid [3].
The defendant deposes that he knew that if he pleaded guilty to the charges early he would receive a discount on his sentence[14] and then continues:
[14] Ibid [5].
6I applied for legal aid and later told my assigned lawyer, Mr Timothy Blake of the Legal Services Commission, that I wanted to get the maximum discount on my sentence.
7It was explained to me that if I pleaded guilty within 4 weeks of my first Court appearance, I would be eligible for up to 40% discount on my sentence.
8I was informed that if I chose to plead guilty my lawyer would not have access to the images.
9I advised my lawyer that I did not think the images were of young children as I had not actively searched for those types of pictures. However, the police told me that they believed the pictures to be child exploitation material so I wanted to get the best discount I could on any sentence imposed upon me.
10…
11Approximately 2 weeks prior to my appearance in the District Court, I attended with my lawyer at the Elizabeth Police Station. I was not able to attend the interview with the Police Officer but my lawyer did.
12During the interview my lawyer was shown the pictures the Police believed consisted of underage children. My lawyer later told me that the images were not obviously of young people but the question of their age would be one that needed to be decided by a Judge or jury.
13I informed my lawyer that I did not actively search for underage children and I did not believe the images were of underage children as they came from legal websites. I told my lawyer that I would like to change my plea to not guilty as I believe the images are not of children under the age of 17 years.
I consider it relevant that the defendant does not rely upon any affidavit from his solicitor as to the circumstances under which he decided to plead guilty.
After I heard argument, my chambers raised with Mr Blake, who also appeared for the defendant on the application, that there was no affidavit from the solicitor in question deposing either as to the circumstances under which advice was given to the defendant prior to entering his pleas or any assessment by the defendant’s legal advisors as to the nature of the material in question.
My chambers advised Mr Blake that if he wished to tender any such affidavit, he was asked to advise the Court as soon as possible.
Mr Blake responded the same day advising he was seeking the advice of the Chief Counsel of the Legal Services Commission and that he believed if he swore an affidavit he would become a witness and would have to withdraw from the file.
Further emails followed between my chambers, Ms Foundas of the DPP and Mr Blake, however they deal with administrative matters such as adjourning the date set for delivery of the decision and I do not set them out. However, I draw attention to the fact that there were other emails to which I have not referred in detail.
On 21 April 2020, Mr Blake responded further that he was the solicitor who advised the defendant, that his assessment of the nature of the materials was that this was not a case where the images were clearly of children, and further that he understood that the DPP accepted his assessment for the purposes of the application. As I understand the position, the DPP accepts that is Mr Blake’s assessment, not the truth of the fact asserted.
On 22 April 2020, Mr Blake sent a further email in which he stated that after seeking further advice from the Chief Counsel of the Legal Services Commission, Mr Mead SC, and further instructions from the defendant, “it has been decided that I will not depose an affidavit in relation to this matter”.
In view of that email, the Court advised the parties by email on 27 April 2020 that I intended to view the material and enquired if either party had any objections to that course. The DPP responded the same day that it considered that course suitable. Mr Blake also responded the same day saying he had no submission to make on that proposed course.
On 8 May 2020, I viewed the seven images and one video comprising the material in question.
Consideration
It is clear from the authorities to which I have referred above, that there are a number of factors to take into account, the most fundamental of which is whether there has been a miscarriage of justice.
Detective Brevet Sergeant Manson swore two affidavits in this matter sworn 19 July 2019 and 28 November 2019 respectively.
In his affidavit sworn 19 July 2019, he deposes that on 3 December 2018 at about 10.15am he attended the Department of Corrections at Elizabeth where he spoke with the defendant who told him that he only looked up legal pornography sites.[15]
[15] At [4].
Detective Brevet Sergeant Manson reviewed and categorised the images and video files obtained from the defendant’s telephone according to the “Oliver scale” recovering 11 videos and 21,007 images. He deposed that the majority of the videos are pornographic in nature. He expressed the view that out of the 11 videos one was in category 4 and involved a child under the age of 14 years. As to the images, he deposed there were seven comprising four of category 1, two of category 2 and one of category 4, all involving a child under 17 years.
In his record of interview, the defendant said he thought he remembered the title of the video “lollipop”. He described it to Detective Brevet Sergeant Manson but could not remember the site from which he obtained the video. Nonetheless he described the process by which he accessed it. As to the images, he said that most of them came from the site “Try Teens”.
The defendant was not crossed examined on his affidavit.
It is apparent from a consideration of the material before the Court:
i.The defendant did not consider that he had images of underage girls on his mobile telephone. That is an irrelevant consideration. Either the images were or were not of females under 17 and/ or 14 as the case may be;
ii.He had not been shown the specific images the police allege were of young girls at the time of instructing his solicitor that he would enter guilty pleas to the two counts. Accepting that is the case, nonetheless the images were on his telephone and there is no suggestion someone else had downloaded them or that he was unaware of them;
iii.It was not until after his solicitor had seen the materials that his solicitor told him that the images were not obviously of young girls and that the question as to the age of the girls would need to be decided by a judge or a jury; and
iv.The application for permission to change his plea was filed on 26 February 2020, shortly prior to the Arraignment in this Court.
The prosecution submits that the defendant made an informed, deliberate decision to plead guilty, which should be treated as final and that there is no evidence before the Court capable of contradicting that. It submits further that it is apparent from his affidavit that the defendant knew he had a potential defence prior to entering his pleas of guilty, namely that the images were not of young children. I do not accept that submission in the sense that in fact what the defendant deposes to in paragraph 9 of his affidavit is that he “did not think the images were of young children as I had not actively searched for those types of pictures”. What the defendant thought is not a defence. Further, there is no suggestion that the defendant did not know what is on his telephone, and the record of interview makes it clear that he did know.
The prosecution submits that the police have maintained their classification of the material and that nothing has changed.
I have considered the authorities to which I have been referred.
Mr Blake submits that a number of the authorities to which I have referred and upon which the prosecution rely deal with matters where there has been a trial or an appeal from a verdict of guilty in circumstances where the defendant was well appraised of the allegations against him or her.[16]
[16] See for example R v Brooks (2007) 96 SASR 478.
He submits further that the authorities can be distinguished from this particular factual scenario by reason of the very early stage at which the pleas were entered and in particular before the prosecution brief of evidence had been delivered and seen by the defendant’s legal advisors.
The defendant’s potential defence is, of course, not what the defendant believed but that the images in question are not of children under the age of 17 or in the case of the aggravated count, under the age of 14 years.
After I viewed the images I gave the parties the opportunity to make further submissions. Mr Blake responded by referring me to the Transcript from 16 April 2020 at T8.25 in relation to the “issuable question”. I set that portion of the transcript at T8.8-T8.37 below:
HIS HONOUR:    But isn't the issue what he says in para.9, that he didn't think the images were of young children, as he hadn't actively searched for those type of pictures? As I understand it, he may well have understood - in fact, I am sure he did fully understand - the nature of the charge because, as you say, rightly so, he has been convicted before this court on a prior occasion and he was on parole. But the issue is there is a dispute, it would seem now, about whether or not the material was in fact child exploitation material. He says he didn't see it. His legal advisers hadn't seen it. All he is going on is the say-so of a couple of police officers that say 'We think it is'. Isn't that the issue?
MS FOUNDAS:   That's the submission put as far as my friend's application is concerned.
HIS HONOUR:    Yes, that's right.
MS FOUNDAS:   I stated this to my friend: for the purposes of this argument, your Honour can accept that there are those issues. My friend's submissions about those matters - and it is identified in my written submissions – is whether there is an issuable question to be tried. I think for the purposes of this argument your Honour can accept that. You can accept that there is an issuable question potentially.
However, in my respectful submission, the prosecution say it is not     determinative of this particular application. I have dealt with that in my written submissions at para.33 onwards, going through to para.37

Ms Foundas relied upon her submissions at paragraphs 33-37 which in turn refer to paragraph 16 of her submissions on the topic of an “issuable question”.[17]
[17] See [35] and [36] of the Prosecution Written Submissions.
In short, the prosecution relies on Jamieson v the Queen[18] in relation to the “issuable question” as to the defendant’s guilt and reproduces a passage from the Victorian Court of Appeal in its outline:
The existence of a so-called 'issuable question of guilt' does not of itself impugn the integrity of a plea of guilty or mandate a conclusion that a miscarriage of justice would occur if a change of plea was not permitted. Of this, more later. For the moment, we simply observe that — (1) in almost every case where an accused pleads guilty, some possible issue for trial — weaker or stronger — will have been abandoned; and (2) the conception of an issuable question of guilt is different from a case in which there is simply no evidence which would sustain a conviction, as appears from the depositions and any other material relied upon by the prosecution. In the latter case, there would certainly be a miscarriage of justice if a change of plea was not permitted.
[18] [2017] VSCA 140, [37].
I approach the “issuable question” by considering if, having viewed the images and the video, there is an arguable defence. I approach that question objectively and not by reference to any standard other than it is arguable. In particular, I do not consider the strength of the argument, only whether it is arguable.
Having viewed the video and images in question, I consider that at least in relation to some of the images there is no arguable defence that they do not describe or depict a child under, or apparently under, the age of 17 years engaging in sexual activity or consists of, or contains, the image (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in production of which such a child has been or appears to have been involved and is of a pornographic nature.
As to the video, it is a compilation of video clips which are obviously category 4 images however again, in my view there is no arguable defence that the video does not describe or depict a child under, or apparently under, the age of 17 years engaging in sexual activity or consists of, or contains, the image (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in production of which such a child has been or appears to have been involved and is of a pornographic nature. Further, I consider that at least in one case the child in question is under the age of 14 years.
Accordingly, I refuse the application.