Willis v Police No. Scgrg-97-1192 Judgment No. S6378

[1997] SASC 6378

WEDNESDAY, 17 SEPTEMBER 1997

WILLIS  v  POLICE
Magistrates Appeal
Prior J
This is an appeal against a sentence imposed in the Magistrates Court at Christies Beach. 
The appellant first appeared on 16 August 1996, charged with being in possession of child pornography. This offence became part of the law of this State on 21 May 1992. From that date, by s33 of the Summary Offences Act 1953, it is an offence to be in possession of child pornography. Before this, mere possession of indecent matter was not an offence. Possession for sale was.
The offence admitted by the appellant was said to have occurred on 1 August 1996 at Happy Valley.  The matter came before the court on a number of occasions in each month after the appellant's first appearance on 16 August 1996. The appellant finally entered a plea of guilty on 21 July. Character evidence was taken on 23 July.  The magistrate recorded a conviction and fined the appellant $3000.  An order forfeiting the offending material to the Crown for destruction was also made.
In this appeal, it is said that the magistrate erred in recording a conviction. It is said that the magistrate should have exercised his discretion, pursuant to s.16 of the Criminal Law Sentencing Act 1988, and refrained from entering a conviction at all. Alternatively, it is said that the penalty of conviction with a fine of $3,000 is manifestly excessive.
There are additional grounds of appeal.  They are that the magistrate erroneously perceived a need to impose stern penalties for the subject offending, that the magistrate erroneously regarded the maximum penalties as too low, and that his Honour had erroneously implied that the commission of the offence should have a bearing on the appellant's continued employment.  Finally, it was said that the magistrate took too narrow a view of the sorts of offending that would call for the maximum penalty, and in so doing failed to take adequate account of the mitigating factors about the offending itself.
In support of the complaint with respect to s.16, it is said that the magistrate failed to give adequate weight to the fact that it was unlikely that the appellant would commit such an offence again. It was also said that the magistrate failed to place adequate weight upon the appellant's antecedents and other personal circumstances. Adequate weight was not accorded to the appellant's employment record and to the fact that this offence was only an offence since May 1992. All the items were said to have been in the appellant's possession before that time and were not obtained after that time. Finally, it was said that the magistrate placed inappropriate weight on the fact that the items constituting the charge, numbering 28, were obtained over a relatively lengthy period of time when in fact it had only been an offence to possess such items since 1992.
In his clear and able submissions, Mr Barrett focussed attention upon certain passages in the magistrate's sentencing remarks. Some of them are paraphrased in the additional grounds of appeal. At the very end of his sentencing remarks the magistrate said that whilst he saw a sentence of imprisonment as inappropriate and no proper grounds for the invocation of s16, against a maximum fine of $4,000, a penalty towards the upper end of that particular range was warranted because of the number of items involved and the fact that they were obtained over a relatively lengthy period of time.
In saying that, the magistrate has erred.  A relevant circumstance was the period of time that the appellant remained possessed of that child pornography after this law came into force.  The magistrate's remarks wrongly referred to obaining before May 1992.
The magistrate properly spoke of the difficulty of determining an appropriate penalty. He properly referred to an overriding duty to take into account the interests of the community, to prevent this sort of offending, but at the same time to have regard to the personal circumstances of the offender. He considered the submission that no conviction should be recorded, saying that at first glance there was some attraction to that. However, he said that not only had he to consider the appellant's personal circumstances but have regard to the community's interests and the community's welfare. On that basis the magistrate said that the case demanded a conviction be recorded. I think Mr Nicholas is correct in his submission that on the material before the magistrate the demands of par(a) of s16 were not met. I agree with the magistrate's conclusion that the s16 was not available in this case. His approach was correct and consistent with authority .
Plainly, had the possession complained of occurred soon after 21 May 1992, and the possession was in ignorance of the law, the matter would have been different and a proper basis for not proceeding to a conviction may have been made out.  That is not this case.
General principles of sentencing do suggest that the fine imposed was certainly severe and perhaps by itself manifestly excessive on the facts as before the magistrate.  It is unnecessary to reach a concluded view about that, given my view as to the identified error in what the magistrate had to say.  I reject the other submissions made by Mr Barrett.  
The appellant remained possessed of this material for a substantial period of time, having obtained the material over a considerable period of time before this offence was created by parliament.  That is a circumstance of aggravation, but looking at the material as a whole I exercise my sentencing discretion to substitute a fine of $1500.
I allow the appeal for that purpose.  The appellant is to have costs fixed at $150.  

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT OWING TO FAILURE OF FOOTNOTE TRANSFER TO JURIS

Dalpiva v Brinkworth (1992) 64 ACR 239; McGregor v Police (1996) 66 SASR 269 and Hemming v Lukin (1996) 67 SASR 248