Saddler v R

Case [2009] NSWCCA 83

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Saddler v R [2009] NSWCCA 83

FILE NUMBER(S):
2008/1142

HEARING DATE(S):
25 February 2009

JUDGMENT DATE:
31 March 2009

PARTIES:
Nigel Keith Saddler (Applicant)
Regina (Respondent)

JUDGMENT OF:
Grove J Buddin J Price J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
08/11/0039

LOWER COURT JUDICIAL OFFICER:
Berman DCJ

LOWER COURT DATE OF DECISION:
18 July 2008

COUNSEL:
J Stratton SC (Applicant)
L Babb SC (Crown)

SOLICITORS:
Aboriginal Legal Services (Applicant)
S Kavanagh (Solicitor for Public Prosecutions (Crown)

CATCHWORDS:
Criminal law - sentencing - possession of child pornography (x3) - whether various matters wrongly taken into account as aggravating factors - whether imposition of maximum penalty warranted - whether sentences manifestly excessive

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Customs Act 1901

CATEGORY:
Principal judgment

CASES CITED:
Bowden v R [2009] NSWCCA 45
Elyard v R [2006] NSWCCA 43
Fahs v R [2007] NSWCCA 26
Hamze v R [2006] NSWCCA 36
Mouscas v R [2008] NSWCCA 181
Power v DPP (NSWDC, unrep 19 July 2007
R v Elliott [2008] NSWDC 238
R v Gent (2005) 162 A Crim R 29
R v Hewitt (2007) 180 A Crim R 306
R v Hoerler (2004) 147 A Crim R 520
R v Jones (1999) 108 A Crim R 50
R v Jones [2009] NSWDC 8
R v King (2004) 150 A Crim R 409
R v Leonard [2008] NSWDC 211
R v Stroempl (1995) 105 CCC (3d) 187
R v Yildiz (2006) 160 A Crim R 218
Regina v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28

TEXTS CITED:

DECISION:

  1. Grant leave to appeal.

  2. Allow the appeal.

  3. Confirm the sentences imposed in respect of counts 2 and 3.

  4. In respect of count 1, allow the appeal and quash the sentence imposed in the District Court.

  5. In respect of count 1, and taking into account the matters on the Form 1, sentence the applicant to a non-parole of 2 years 9 months with an overall term of 4 years to commence on 22 July 2008.  The total term will expire on 21 July 2012 and the non-parole will expire on 21 April 2011 on which date the applicant will be eligible for release on parole.  The total effective sentence is thus one of 5 years imprisonment with a non-parole period of 3 years 9 months.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/1142

GROVE J
BUDDIN J
PRICE J

TUESDAY 31 MARCH 2009

NIGEL KEITH SADDLER v R

Judgment

  1. GROVE J:     I agree with Buddin J and wish only to make brief comments about two matters.

  2. The learned sentencing judge detailed the considerable activity in which the applicant must have engaged when he formed his conclusion that the applicant’s offence was “part of planned or organized criminal activity” and thus constituted a factor of aggravation in accordance with s 21A (2) (n) of the Crimes (Sentencing Procedure) Act 1999. For the reasons given by Buddin J that conclusion…

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AGLC
Saddler v R [2009] NSWCCA 83
Case
[2009] NSWCCA 83
Decision Date

CaseChat Overview and Summary

The case of Saddler v R involved the defendant, Saddler, who was convicted and sentenced for multiple counts of possession of child pornography. The case was heard by the court, which was tasked with determining whether certain matters were wrongly considered as aggravating factors in the sentencing and whether the imposition of the maximum penalty was warranted, as well as whether the sentences were manifestly excessive. The defendant was arrested and a search of his vehicle revealed an external hard drive containing a substantial amount of child pornography. Further searches of his premises uncovered additional child pornography on various devices. The defendant was sentenced to a total term of 6 years imprisonment with a non-parole period of 4 years 6 months.

The legal issues before the court were whether the sentencing judge had wrongly considered certain matters as aggravating factors, whether the imposition of the maximum penalty was warranted, and whether the sentences were manifestly excessive. The court examined the principles of sentencing in cases involving child pornography, including the harm caused to the children depicted in the material, the number and nature of the images possessed, and whether the possession was for the purpose of sale or distribution. The court also considered the relevance of the quantity of images and the number of different children victimised.

In its reasoning, the court acknowledged the significant harm caused by the possession of child pornography, both to the children depicted and to the broader community. The court noted that the possession of such material contributes to the production and distribution of child pornography, which often involves the exploitation and abuse of children. The court also recognised the importance of considering the nature and content of the pornographic material, the number of images possessed, and whether the possession was for the purpose of sale or distribution. After reviewing the sentencing principles and the specific circumstances of the case, the court determined that the sentences imposed were appropriate and not manifestly excessive.

The court concluded that the sentencing judge had properly considered the relevant factors in imposing the sentence and that the imposition of the maximum penalty was warranted given the gravity of the offences. The court found that the sentences were proportionate to the seriousness of the offences and did not constitute an error in the exercise of judicial discretion. The court's decision was based on a thorough analysis of the sentencing principles and the specific circumstances of the case, leading to the affirmation of the sentences imposed.

Orders

Orders of the court

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Background

Background to the litigation

In respect of the first count, and taking into account the matters on the Form 1, the applicant was sentenced to a non-parole period of 3 years 6 months with the total term being 5 years imprisonment. That sentence was ordered to commence on 22 July 2008. The total effective sentence is thus an overall term of 6 years imprisonment with a non-parole period of 4 years 6 months.The factual background An Agreed Statement of Facts was before the sentencing judge. What follows is a summary of that material. The applicant was arrested on 22 July 2007 and a search was conducted of his motor vehicle. In the vehicle police found an external hard drive which contained 19,030 images of explicit child pornography. There were 18,718 image files, 259 movie files and 53 archive files. The possession of these images gave rise to count 1. The images were of children ranging in age from less than 12 months to early teens. The images ranged in classification on the COPINE scale from 1 to 10 (level 10 is the most serious category, involving pain or sex with animals). The photographs included photographs of young children (including babies) performing sexual acts, of them being tied up, of them being penetrated by objects, and of them performing sexual acts with animals. The video files contained movies of male and female children of various ages performing sexual acts with adults and other children. During the search of the vehicle 0.2 grams of cannabis leaf and a wooden baton were also located. Those discoveries gave rise to the first two charges on the Form 1. The following day police executed a search warrant upon the applicant’s premises. Amongst other things they located an external hard drive, a lap top computer, and a number of DVDs and CDs. The external hard drive contained 15,400 image files, 416 movie files and 24 archive photographs all containing images of child pornography. The possession of this material gave rise to count 2. The images again ranged from level one to level ten on the COPINE scale. There were images of children performing oral sex on children and adults, of children tied up with bondage equipment, of babies with penises inserted into their mouths and anuses, of children performing sexual acts with a dog, and of children performing sexual acts. The video files contained movies of children of various ages performing sexual acts with adults and other children. The laptop contained 1690 images and 12 video files (although the video files had been deleted). These images gave rise to count 3. The images were rated from level 1 to level 9 on the COPINE scale. There were images of children performing oral sex on children and adults, of children tied up with bondage equipment, and of babies with penises inserted into their mouths and anuses. As I have said, a number of DVDs and CDs were located in the applicant’s premises. The possession of four of the DVDs gave rise to the third charge on the Form One. These DVDs were entitled ‘Golden Boys – Teen Special Part One’, ‘Teen Special – Golden Boys Part Two’, ‘Teen Special – Part 3’, and ‘Teen Special – Part 4’. In each case the videos depicted males aged between 10 and 15 years performing sexual acts with themselves and each other, and, in particular, depicted mutual and self-masturbation, oral sex, and anal intercourse. In each case the scenes were primarily at level 7 on the COPINE scale being ‘explicit sexual activity’.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GROVE J

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Ratio Decidendi

Legal Principle Established

Established by: GROVE J

His Honour continued:The possession of child pornography is a crime which requires that attention be paid to the means of production of the material. The harm caused by offences of this nature takes many forms, but the most obvious harm is caused to those young children who are used by the manufacturers of child pornography as they satisfy the demands of people such as the offender. When considering the gravity of an offence of possession of child pornography the authorities require that I take into account those who are harmed by its creation. Relevant sentencing considerations It is convenient at the outset to further identify some of the principles which inform the sentencing process in cases of child pornography. In R v Gent (2005) 162 A Crim R 29 this court considered a case which involved the importation of child pornography in contravention of the Customs Act 1901. Johnson J (with whom McClellan CJ at CL and Adams J agreed) examined a number of authorities which have considered this issue. Amongst them was R v Stroempl (1995) 105 CCC (3d) 187 in which Morden ACJO in the Ontario Court of Appeal said:The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense, possessors such as the appellant instigate the production and distribution of child pornography – and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place. (at 191) That statement was referred to with approval in R v Jones (1999) 108 A Crim R 50 by Kennedy J who went on to say that:[t]he production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims. (at 52 ) Having completed his review of the relevant authorities, Johnson J said:As cases such as Liddington, Jones, Assheton and R v C make clear, a range of factors bear upon the objective seriousness of an offence of possession or importation of child pornography. These factors include: (a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;(b) the number of images or items of material possessed by the offender;(c) whether the possession or importation is for the purpose of sale or further distribution;(d) whether the offender will profit from the offence.It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised. (par 99)