R v v, A - [2019] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v V, A
[2019] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Justice Doyle)
5 June 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - GENERALLY
Appeal against sentences imposed on one count of aggravated production of child exploitation material, one count of aggravated dissemination of child exploitation material, one count of indecent assault, and one count of being a party to the commission of an act of gross indecency.
The appellant, AV, sexually exploited her grandchildren by photographing them and distributing those photographs to her co-accused. One of the photographs depicted AV touching one of her grandchildren’s vagina with her fingers. AV took one of her grandchildren to the house of the co-accused, where she knew that the grandchild would be sexually assaulted.
AV was sentenced to a total period of imprisonment of five years, four months and 13 days imprisonment, with a non-parole period of four years and four months. The non-parole period was required to be at least four-fifths of the head sentence, by virtue of the fact that AV was deemed to be a serious repeat offender.
AV appeals on the grounds that the sentences and their accumulation, and the non-parole period were manifestly excessive.
Held per Kourakis J (Parker and Doyle JJ agreeing), dismissing the appeal:
1.    The sentences, although heavy are not manifestly excessive.
2.    The offence of aggravated indecent assault in itself warranted a substantial sentence.
3.    The single sentence for the combined offending of producing and disseminating child exploitation material was moderate.
4.    The appellant’s position of trust as a grandmother and her obligation of care when her grandchildren were with her demands condign punishment for the offence of being a party to the commission of an act of gross indecency.
5.    Viewed objectively, the facilitation of the act of gross indecency placed the child at substantial risk of more serious offending.
6.    The need to protect children from offending of this kind, and deter those who prey on them for their prurient interest, outweighs the sympathy excited by the appellant’s own life disadvantages and vulnerability.
Criminal Law Consolidation Act 1935 (SA) ss 56, 58, 63; Sentencing Act 2017 (SA) s 26, referred to.
R v Arthur [2019] SASCFC 4, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "child exploitation material", "obligation of care", "general deterrence"

R v V, A
[2019] SASCFC 61
Court of Criminal Appeal: Kourakis CJ, Parker and Doyle JJ

KOURAKIS CJ: The appellant, AV, appeals against sentences imposed on her conviction in the District Court on one count of aggravated production of child exploitation material, one count of aggravated dissemination of child exploitation material, one count of aggravated indecent assault, and one count of being a party to the commission of an act of gross indecency.
The offence of indecent assault committed on a person under the age of 14 is an aggravated offence, the maximum penalty for which is imprisonment for 10 years.[1] A person who produces or disseminates child exploitation material of a child under the age of 14 commits an aggravated offence contrary to s 63 of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and is liable to imprisonment for a maximum term of 12 years.
[1] Criminal Law Consolidation Act 1935 (SA) s 56(1)(b).
Section 58 of the CLCA creates an offence to commit, incite or procure, or otherwise be a party to, the commission of an act of gross indecency. The penalty is a term of imprisonment not exceeding three years or, in the case of a subsequent offence, five years.
The Judge engaged s 26 of the Sentencing Act 2017 (SA) and imposed a single penalty of three years and six months for the aggravated offences of producing and disseminating child exploitation material and indecent assault, after commencing with a notional sentence of five years imprisonment, which was reduced by 30 per cent for the appellant’s plea of guilty.
The Judge imposed a cumulative sentence of one year, 10 months and 13 days for the offence of being a party to an act of gross indecency, after commencing with a notional sentence of two years and eight months, which was again reduced by 30 per cent for the appellant’s early plea of guilty.
The total head sentence was therefore a period of five years, four months and 13 days imprisonment. The Judge set a non-parole period of four years and four months, which, by virtue of the appellant being classified as a serious repeat offender, was required to be at least four-fifths of the head sentence imposed. The Judge refused to suspend the sentence, or to impose an Intensive Correction Order.
The appellant appeals on grounds that the sentences and their accumulation, without at least some partial concurrency, were manifestly excessive, as was the non-parole period. I would dismiss the appeal. The sentences, although heavy, are not manifestly excessive. The need to protect children from offending of this kind, and deter those who prey on them for their prurient interest, outweighs the sympathy excited by the appellant’s own life disadvantages and vulnerability.
The offending
The appellant was the grandmother of the two children, aged 20 months and seven months, who were the victims of the offences of producing and disseminating child exploitation material. The appellant sent the photographs to a man, Shane Hartley, with whom she was romantically involved. Prior to sending the images, the appellant had participated, through text messages, in Mr Hartley’s sexual fantasies concerning children. In his communications with the appellant, Mr Hartley expressed sexual interest in her granddaughters and asked her for images of them. After the appellant sent the images, Mr Hartley sent her text messages asking her to bring her 20-month-old grandchild to his home. The communications were sexually explicit in relation to his anticipated access to her granddaughter. When the appellant brought her grandchild to Mr Hartley’s home, she placed the child on his bed and removed her nappy. She left to dispose of it and when she returned she found Mr Hartley with his naked genitals over the top of the child’s.
The primary contention of the appellant on appeal was that the notional starting point, just four months less than the maximum penalty for offences of gross indecency, whether committed by a perpetrator or a facilitator, was manifestly excessive. For the conduct witnessed by the appellant, Mr Hartley was convicted of a non-penetrative offence of aggravated indecent assault, the maximum penalty for which is 10 years imprisonment. Mr Hartley was sentenced to four years, two months and 13 days, reduced from a notional sentence of six years imprisonment, for his plea of guilty. The difference in charges may reflect the appellant’s lack of knowledge of precisely what Mr Hartley intended to do when she took her granddaughter to his premises.
The appellant’s antecedents
The appellant is 47 years of age with no relevant prior convictions. She was brought up in an unhappy and violent household. She had a serious learning difficulty which prevented her from completing Year 10 of high school. She was bullied in the school yard. The appellant has been psychologically assessed to have no more than borderline cognitive functioning.
Nonetheless, to the appellant’s credit she has secured employment in a range of fields over her working life, including as a horse-riding instructor, nanny and cleaner. Her marriage was marred by violence. She has three children in their twenties and five grandchildren.
The sentencing remarks
The Judge summarised the appellant’s offending as follows:
I received a victim impact statement from the parents of your two grandchildren. It was read by your daughter, who was the mother of those two children and she was supported by her partner. What a terrible thing you have done to both of their lives. Their devastation, and the devastation for their children, cannot be underestimated. What is also tragic is that they look back and see signs that they feel they did not recognise at the time. The tragedy lies in them even beginning to blame themselves for not recognising those signs. But they have no blame. They were entitled to place their absolute trust in you, as a biological grandparent of their two children, to care for those two children. Who could have thought a grandmother could let those things be done to her grandchildren? Yours was the grossest abuse of trust that can be imagined.
The impact upon the child, who was 20 months old at the time of the offending, was and remains enormous. She wakes screaming with night terrors, she has a violent reaction to nappy changes, she refuses to enter a room that males are in. Your daughter is right when she says that you were that young girl’s grandmother and should have protected her and cared for her. Instead, you put her in the worse [sic] possible situation and exposed her to terrible harm.
The Judge explained her reasoning in fixing the sentences she did as follows:
Your breach of trust in relation to your two grandchildren and taking images of them is the type of conduct the community would find difficult to come to terms with. Although you have a low risk of re-offending, the need for general deterrence to be reflected in the sentence looms large.
For the offences committed when you took images of your grandchildren’s vaginas and sent them to Mr Hartley and indecently assaulted your grandchild in that process, I will impose one sentence pursuant to s.26 of the Sentencing Act.
But for your plea of guilty for those three offences, I would have imposed a sentence of five years imprisonment. I reduce that by 30% to a sentence of three years and six months.
Your offending in relation to the act of gross indecency takes your criminal conduct to another level. What you did by taking your grandchild around to Mr Hartley is really unspeakable. The grossest breach of trust, not only in relation to your own daughter but in relation to your own infant granddaughter, is immeasurable. In a premeditated way, you took that child to Mr Hartley, knowing that she was going to be sexually assaulted.
The maximum penalty for that offence is only three years imprisonment. I am going to impose close to that maximum penalty because it really is the worst type of offending of that nature.
But for your plea of guilty I would have imposed a sentence of two years, eight months imprisonment. I reduce that by 30% to a sentence of one year, 10 months and 13 days.
In my view that offending that day was such an escalation and so abhorrent that it should be cumulative upon the other sentence.
That makes a final sentence of five years, four months and 13 days.
By force of the Sentencing Act, you are deemed to be a serious repeat offender. That means the non-parole period that I set has to be at least four-fifths of the sentence I have just imposed. Your counsel has not suggested there are exceptional circumstances so that that would not occur.
I impose a non-parole period of four years and four months.
Discussion
To explain why a starting point so close to the maximum for the offence of being party to the commission of an act of gross indecency was not manifestly excessive, it is necessary to say more about Mr Hartley.
Mr Hartley was convicted and sentenced for some 13 offences, most of which involve the sexual exploitation of children. Over 600 images and 14 videos of child exploitation material were found on his telephone, most of which was aggravated child exploitation material, including material falling within the worst categories. Mr Hartley was also convicted of sharing both basic and aggravated child exploitation material with others.
Mr Hartley was also convicted of offences in which he had attempted to obtain images from children by posing as a 14-year-old male.
More relevantly, Mr Hartley was also convicted of two offences involving communications with a woman in New South Wales who was the mother of a nine‑year-old girl. Mr Hartley engaged in sexualised conversation with that woman and repeatedly requested that she send him naked images of her daughter. The woman sent a total of 121 such images on 12 separate occasions to him. Most of the images were category 1 child exploitation material, but some were category 3. The appellant was just one of the women manipulated by Mr Hartley to provide him with child sexual exploitation material.
The appellant’s complaints about the single sentence imposed for the counts of producing and disseminating child exploitation material and indecently assaulting her granddaughter can be dealt with briefly. The production of child exploitation material and its dissemination, especially to others who will further disseminate it, is a serious offence. In any event, the offence of aggravated indecent assault in itself warranted a substantial sentence. The single sentence for the combined offending was moderate.
Commencing with a notional sentence so close to the maximum penalty for participating in an act of gross indecency is self-evidently a high starting point, and all the more so because the maximum sentence is also applicable to perpetrators. It would be expected that sentences approaching the maximum would generally be reserved for perpetrators, and not persons who have aided or facilitated the commission of the offence. However, there are aspects of the appellant’s offending which justify the Judge’s approach.
First, offenders like Mr Hartley naturally find it difficult to have access to children of the age of the appellant’s granddaughters precisely because of the close care and protection which parents and grandparents give young children. The family member which most parents would trust, more than any other relative, to care for their child as well they do, is the child’s grandmother. It was, no doubt, on that sentiment which the appellant’s daughter acted in entrusting her children’s care to the appellant. It is the contrast between the unquestioning trust placed in the appellant, and the gross and selfish departure from the obligation of care which she assumed when the children were left with her, which demands condign punishment.
Secondly, the facilitation of the act of gross indecency also placed the child at substantial risk of more serious offending. The appellant is not to be sentenced on the basis that she knew that Mr Hartley would go further and indecently assault her grandchild. However, it is necessary to take into account that, even though the appellant contemplated no more than an act of gross indecency, objectively there was a risk of greater harm.
Thirdly, notwithstanding the appellant’s personal circumstances and her own manipulation by Mr Hartley, considerations of general deterrence must play a large part in fashioning the appropriate sentence for offending of this kind. The entreaties of offenders like Mr Hartley can only be countered by a fear of condign punishment. In January this year this Court delivered its judgment in a sentence appeal concerning offences arising out of the manipulation of a vulnerable mother of a young child by someone who had the intention of procuring the child for sexual purposes.[2] Offences of this kind will generally be committed by dysfunctional individuals. Sympathy for an offender’s personal circumstances, and even real prospects for rehabilitation, become second order considerations in sentencing for offences of this kind. The protection of children now, and into the future, is the paramount consideration.
[2] R v Arthur [2019] SASCFC 4.
I would dismiss the appeal.
PARKER J: I would dismiss the appeal. I agree with the reasons of the Chief Justice and in particular, his observations about sentencing in a case such as this. I also agree with the observations of Doyle J.
DOYLE J: I agree with the reasons of the Chief Justice.
I make two additional observations in relation to submissions made by the appellant in challenging the sentencing judge’s use of a starting point close to the maximum penalty for the offence of being a party to the commission of an act of gross indecency.
The first relates to the sentencing judge’s description of the appellant’s offending in this respect as involving “the worst type of offending”, and as thus warranting the imposition of a sentence close to the maximum penalty. In my view, there was no error in this description or approach in the circumstances of this case. As the High Court observed in Veen v The Queen (No 2),[3] the mere fact that one can envisage a worse case does not necessarily prevent the imposition of even the maximum penalty, let alone a penalty which is merely close to (but materially less than) that maximum.
[3] Veen v The Queen (No 2) (1988) 164 CLR 465 at 478 (Mason CJ, Brennan, Dawson and Toohey JJ).
The second relates to the appellant’s submission that her offending was not motivated by sexual gratification. In my view, this is of limited relevance in the circumstances of the present case. Those circumstances include the fact that the appellant contemplated that her offending would enable Mr Hartley to use the child victim for his sexual gratification. They also include the fact that the appellant was in any event selfishly motivated by a desire to ingratiate herself with Mr Hartley (albeit in a context where the appellant was vulnerable to manipulation by Mr Hartley).
I would dismiss the appeal.