R v Thompson - [2014] SASCFC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v THOMPSON
[2014] SASCFC 33
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
10 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
The appellant pleaded guilty to an offence of aggravated accessing child pornography and of aggravated dissemination of child pornography. The Judge sentenced the appellant to one year and nine months, reducing the head sentence from two years and six months on account of the appellant’s early guilty plea. The Judge fixed a non-parole period of 12 months.
The appellant appeals on the ground that it was manifestly unreasonable to refuse to suspend the sentence and to impose a non-parole period as long as 12 months.
Held (Kourakis CJ, Gray and Stanley JJ agreeing):
It was not manifestly unreasonable of the Judge to decline to suspend the sentence (Kourakis CJ at [17]). Given the appellant’s counsel made no submissions on the non-parole period, it is not arguable that the non-parole period was manifestly excessive (Kourakis CJ at [19]).
Even though an offenders potential for rehabilitation may more strongly be reflected in the non-parole period than the head sentence, it must still reflect the general deterrence which remains an important consideration notwithstanding the personal circumstances of offenders against the child pornography laws of this State (Kourakis CJ at [18]).
Permission to appeal against the non-parole period refused and the appeal dismissed (Kourakis CJ at [21]).
Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
R v Padberg (2010) 107 SASR 386, discussed.
Baldwin v Police [2007] SASC 214; R v Gordon, ex parte Director of Public Prosecutions [2009] QCA 209; R v Sykes [2009] QCA 267; Director of Public Prosecutions (Tas) v Latham [2009] TASSC 101; Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60, considered.

R v THOMPSON
[2014] SASCFC 33
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: This is a sentence appeal.The appellant pleaded guilty in the Magistrates Court to an offence of aggravated accessing child pornography and an offence of aggravated dissemination of child pornography. The aggravating circumstance of both offences was that the children depicted were under the age of 14 years. The maximum penalty for the former offence is seven years imprisonment and for the latter 12 years imprisonment.
The Judge commenced with a notional single sentence for both offences of two years and six months. He reduced that head sentence to one year and nine months on account of the appellant’s early guilty plea. The Judge fixed a non-parole period of 12 months. The Judge observed that the appellant had no previous convictions but refused to wholly suspend the sentence. The Judge concluded that because the need to deter offences of this kind was “urgent”, it would be inappropriate to suspend the sentence. The Judge accepted that the appellant’s background and health were relevant considerations but found that the appellant’s health was not such as to render imprisonment an unduly harsh sentence within the meaning of s 38(2c) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act).
The appellant appeals on the sole ground that the Judge erred in failing to suspend the sentence of imprisonment. The appellant does not point to any patent error. As it must therefore be, the appellant’s contention is that it was manifestly unreasonable not to suspend the sentence. During the course of the appeal the appellant sought permission to appeal on the additional ground that the non-parole period was manifestly excessive.
The Offending
The appellant created an account with a Russian internet website which allowed him to upload and share images with others. On 18 August 2008, when the appellant was 20 years of age, he uploaded four photographs on to that site in a file called “tied up boys”.[1] The images depicted male children under the age of 14 years lying in various positions with their hands and feet bound. The file was last “checked” on 10 April 2011.
[1] The offence of dissemination of child pornography includes taking a step in its dissemination.
A police search of the appellant’s computers found a further 20 pornographic images of children under the age of 14 in similar poses. Some of the images showed the children being subjected to physical abuse. The images were “thumbnail images” which were evidence that the appellant had accessed an internet site and had viewed the image but had not downloaded them on to his computer.
When interviewed by police, the appellant admitted accessing a site showing children tied up on about 50 times over the preceding ten years. After an initial denial, the appellant also admitted placing the “tied up boys” file on his “profile” with the message “P4P only or trade. Post reply with pass and I will post a reply on your page with my pass. Deal?” However, the appellant claimed that no sharing eventuated. The appellant had also told the police that they would not find pornographic images on his computers. The appellant agreed that he may have been the person who “checked” the site in April 2011. If the appellant was the person who “checked” the file in April 2011, then his interest in the Russian site had continued over several years. If it was another person who did so, then the appellant’s conduct was effective in disseminating child pornography.
The source of the images which the appellant uploaded was not disclosed either in the police interview or sentencing submissions. Nonetheless, it is clear that the two offences on which the appellant fell to be sentenced were committed in the context of a substantial interest in, and frequent accessing of, child pornography. The record of interview shows that the appellant had little insight into the wrongness of his behaviour and that he was neither frank nor remorseful about his offending.
For the purposes of classification of the images, the Judge assessed them as portraying both bondage and sadism. The Judge characterised the offending as being in the higher end of the scale of offending of this kind.
Personal Circumstances
The appellant is 26 years of age. He works as a manager of a pizza bar. Mr Thompson has been closely involved in a local church community from the age of eight. From a young age he held an ambition to be a youth leader. He continued to work in the church as a youth leader until shortly after his arrest by the police.
The appellant suffered a range of serious medical conditions as a child, including hydrocephaly, spinabifida and cleft palate. He was frequently hospitalised up until the age of 15. As a result of his physical impediments, the appellant was bullied at school and as a result was left with very low self esteem.
Sadly the appellant did not have much in the way of family support in his childhood. His parents separated when he was a child and he was brought up by his mother who suffered from a serious drug addiction. His father was unsupportive and distant.
When still a child the appellant commenced to experiment with bondage games with other children. In his teenage years, he had a liaison with an adult who shared a similar interest in bondage. The appellant found that experience both unsatisfactory and frightening. He withdrew into the internet world to satisfy his prurient interest more safely from the confines of his bedroom.
The sentencing Judge was provided with a report from a psychologist, Mr Jenkins. Mr Jenkins opined that the appellant’s offending was “best explained as a developmental problem of social emotional immaturity with its origins in childhood trauma and social disconnection and withdrawal.” Mr Jenkins explained that the appellant “has tended to escape from social and emotional problems into a fantasy world which has involved internet pornography.”
The Appeal
The appellant does not contend that the sentencing remarks disclose any express error. The appellant’s submission is, in effect, that it was manifestly unreasonable to refuse to suspend the sentence and to impose a non-parole period as long as 12 months.
This Court has often stressed that general deterrence is a particularly important consideration in sentencing for offences of this kind.[2] In R v Padberg[3] I referred to the importance of general deterrence in this way:
The abuse of children in that way, wherever in the world it occurs, cannot be tolerated. The global distribution network provided by the internet is likely to have increased the abuse of children worldwide. I accept that in a sense the enormous volume of material accessed by the respondent loses some of its significance as a measure of the depravity of his conduct because of the quantity of material available which can be accessed and the ease with which it can be downloaded through the internet. On the other hand, the enormity of the material downloaded by the respondent, and the even greater morass of material available through the internet, is an indication of the extent of the global abuse of children to which I have referred.
Everyone who accesses child pornography gives a reason for, and in that sense encourages, the continued abuse of young children. The authorities to which the Chief Justice has referred emphasise the paramount importance of deterrence. The application of that legal policy should not be delayed. Unfortunately many offenders against these statutory provisions will present with pathetic personal circumstances. If leniency is extended to all, or many, of the offenders with similar personal characteristics, it will not be possible to implement a policy of deterrence as the paramount consideration. It is for that reason that many authorities recognise the relatively reduced scope to extend leniency on the basis of an offender's personal circumstances. In the face of the paramount importance of deterrence, few offences committed by accessing and possessing images in the most serious two categories are ever likely to be committed in circumstances which warrant a complete suspension of the term of imprisonment which must, almost invariably, be imposed.
…
It is in the very nature of this type of offending, which often involves the sharing of electronic files between offenders, that the court's approach to sentencing will quickly be communicated to those with a predilection to access child pornography. In my view, it is also likely that those individuals will find the prospect of immediate imprisonment a strong deterrent. These offences cause much suffering and are difficult to detect. It is of the utmost importance that sentences which have a strongly deterrent effect are imposed. There was no aspect of the respondent's circumstances which could reasonably be regarded as sufficiently differentiating him from the generality of other offenders so as to displace the need for a sentence with a high level of deterrence.
I acknowledge that where a sentence, although manifestly inadequate, is consistent with existing, albeit erroneous, sentencing patterns, there may be good reason to refuse leave notwithstanding the error. I acknowledge that that is all the more so where the respondent to a prosecution appeal is a first-time offender who was not sentenced to an immediate term of imprisonment. However, the establishment and maintenance of sentencing standards for offences of this type which have a strongly deterrent effect is a matter of urgency and outweighs considerations which are personal to the respondent. For that reason, I would give leave to allow the appeal. Having granted leave, and being satisfied that the sentencing judge erred, I am obliged to correct that error because I have no further discretion to refrain from doing so. I must impose the sentence which, in my view, should have been imposed by the judge.
(footnotes omitted)
[2] Baldwin v Police [2007] SASC 214, [16]-[18] per Kelly J; R v Gordon, ex parte Director of Public Prosecutions [2009] QCA 209, [43] per Keane JA; R v Skyes [2009] QCA 267, [28]-[30] per Mullins J; Director of Public Prosecutions (TAS) v Latham [2009] TASSC 101, [34] per Porter J; Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60, [21] per Harper JA.
[3] (2010) 107 SASR 386, [41]-[45].
The cruelty involved in the images and the appellant’s role in disseminating them or making them available to others makes it difficult to afford him much leniency. There is, as I earlier observed, reason to doubt his level of insight despite the opinion of Mr Jenkins. The appellant has frequented internet sites displaying child pornography and has manifested a preparedness to engage in acts of the kind shown on those sites. These matters suggest a deep fixation on the kind of pornography with which he is charged. It is by no means clear that a wholly suspended sentence would have achieved the personal correction required in order to successfully rehabilitate the appellant.
It was open to the sentencing Judge to decline to suspend the sentence. Indeed, even though other Judges may have exercised the discretion favourably to the appellant, the Judge’s decision not to do so is strongly supported by the material put before him and the need for general deterrence. It certainly was not manifestly unreasonable of the Judge to decline to suspend the sentence.
For the same reasons it was open to the Judge to fix a non-parole period as long as 12 months. I acknowledge that the non-parole period left only nine months for supervised parole but that is largely a reflection of the relatively low head sentence. Another judge may reasonably have set a non-parole of no more than nine months to allow more time for the supervision which might rehabilitate the appellant and further protect the community on his release. However, even though an offender’s potential for rehabilitation may more strongly be reflected in the non-parole period than the head sentence, it must still reflect the general deterrence which, for the reasons I gave in R v Padberg[4] remains an important consideration notwithstanding the pathetic personal circumstances of offenders against the child pornography laws of this State. Indeed, counsel who appeared for the appellant on sentencing did not contend for an especially low non-parole period.
[4] (2010) 107 SASR 386.
The appellant’s counsel made no submissions on the non-parole period. It is not arguable that the non-parole period was manifestly excessive.
I mention one final matter. The Judge referred to the “urgent” need for deterrence in sentencing for offences of this kind. I suspect that the Judge may have had in mind the last of the cited passages from my reasons in Padberg. The “urgency” to which I referred in that paragraph was the need to immediately correct the manifestly inadequate sentence in Padberg without first issuing a warning. In sentencing at first instance for offences of this kind, general deterrence must be given considerable weight but questions of “urgency” do not arise. I am certain that it is to the considerable weight which must be accorded general deterrence that the Judge’s use of the word “urgent” was directed.
Conclusion
I would refuse permission to appeal against the non-parole period. I would dismiss the appeal
GRAY J: I agree with the orders proposed by the Chief Justice. I do not wish to add to his Honour’s reasons.
STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.