Young v the Queen - [2021] SASCA 51

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
YOUNG v THE QUEEN
[2021] SASCA 51
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
3 June 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - RECOGNISANCE RELEASE ORDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
Appeal against sentence.
The appellant was convicted of three counts of accessing child pornography material and three counts of transmitting child pornography material contrary to the Criminal Code Act 1995 (Cth). The offending occurred over a period of four months and related to the exchange of child pornography material over a chat application.
In sentencing the appellant, the Judge considered two psychological reports. His Honour found that, on the balance of probabilities, the appellant’s interest in child pornography ‘remains’ beyond the offending. The Judge was also satisfied beyond reasonable doubt that there was a risk that the appellant would reoffend.
The appellant was sentenced to a head sentence of 17 months imprisonment for all six counts. The Judge ordered that the appellant be released on a recognisance order with conditions after serving five months in custody.
The appellant appeals against his sentence on three grounds. The first ground contends that the sentencing Judge erred by finding that the appellant’s interest in child pornography remains beyond the offending and by applying the wrong burden of proof in making this finding. The second ground contends that the sentencing Judge erred by failing to order an immediate release upon a recognisance release order. The third ground contends that the sentence was manifestly excessive.
Held (by the Court), granting permission to appeal on grounds 2 and 3 and dismissing the appeal:
1. The Judge adopted a nuanced approach to the onus of proof and correctly found, on the balance of probabilities, that the appellant’s interest in child pornography was not yet behind him.
2. The Judge’s remarks reveal a careful and considered analysis of the material before him, precisely in accordance with correct principles.
3. No error has been demonstrated in the approach of the sentencing Judge.
Criminal Code Act 1995 (Cth) s 474.19(1)(a)(i), s 474.19(1)(a)(iii), referred to.
R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359; R v Buttigieg [2020] SASCFC 38; R v Irvine [2016] SASCFC 104; R v Neilson [2016] SASCFC 90; R v Chunza [2018] SASCFC 74; Cluett v The Queen (2019) 279 A Crim R 57, considered.

YOUNG v THE QUEEN
[2021] SASCA 51

Court of Appeal – Criminal: Kelly P, Doyle and Bleby JJA
THE COURT:
Introduction

The appellant, Warren Jon Young, pleaded guilty to, and was convicted of, three counts of accessing child pornography material and three counts of transmitting child pornography material, contrary to the Criminal Code Act 1995 (Cth) (‘the Criminal Code’). The offending related to the appellant’s participation in online chat conversations, in which child pornography material was exchanged, between July 2018 and November 2018.
On 21 January 2021, the appellant was sentenced in the District Court to a head sentence of 17 months imprisonment for all six counts. The sentencing Judge ordered that the appellant be released on a recognisance order, with conditions, after a period of five months.
The appellant appeals against his sentence on three grounds.
The first ground contends that the sentencing Judge erred in the exercise of his sentencing discretion by finding that the appellant’s interest in child pornography ‘remains’ beyond the period of offending, and by applying the wrong burden of proof in making this finding. In addition, it was contended that the Judge’s finding was against the weight of the evidence and other findings and reasons for sentence.
The second ground of appeal contends that the sentencing Judge erred in the exercise of his sentencing discretion by failing to find that circumstances existed to order an immediate release upon a recognisance release order.
The third ground of appeal is that the sentence was manifestly excessive in all the circumstances.
On 12 March 2021, a Judge of this Court granted permission to appeal on ground 1 and referred the application for permission to appeal on grounds 2 and 3 to the Court of Appeal.
The offending
The offending comprises three counts of using a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code,[1] and three counts of using a carriage service to transmit child pornography material, contrary to s 474.19(1)(a)(iii), [2] as it then was.[3] The offending occurred over a period of approximately four months, between 6 July 2018 and 10 November 2018.
[1] Counts 1, 3 and 5.
[2] Counts 2, 4 and 6.
[3] It is noted that s 474.19 has since been repealed following the passage of the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth). The previous offences under s 474.19 would now fall under s 474.22.
During that time, the appellant was using ‘Kik’, a messenger application, to receive and transmit pornography with three other users. The offences related to a total of 33 images and two videos, which were found to have been exchanged, following a full forensic examination of the appellant’s mobile phone. The images and videos were classified under the Child Exploitation Tracking System scale. Of the images, 32 were category 1 images, depicting children with no sexual activity, and one image was a category 4 image, which depicted penetrative sexual activity involving children and/or a child. A majority of the category 1 images depicted children who were fully clothed but still constituted child pornography material. The videos were both characterised as being in category 4.
The offending the subject of count 1 occurred between 24 July 2018 and 2 August 2018 and concerned the appellant accessing six category 1 images and two category 4 videos sent by a single user. The offending the subject of count 2 occurred between 30 July 2018 and 11 August 2018 and related to the appellant transmitting seven category 1 images to that same user.
Counts 3 and 4 related to communications with a different user. The offending the subject of count 3 occurred between 6 July 2018 and 22 July 2018 and related to the appellant accessing six category 1 images. Count 4 was in respect to the appellant transmitting five category 1 images and one category 4 image between 22 July 2018 and 3 August 2018.
Counts 5 and 6 related to the appellant’s communications with a third user. Count 5 involved the appellant accessing a single category 1 image on 10 November 2018. Count 6 involved the appellant transmitting seven category 1 images on 9 November 2018.
The appellant was arrested on 10 April 2019 and entered pleas of guilty to all six counts on 11 September 2020.
Sentencing of the appellant
The appellant was sentenced on the basis that, while his offending related to a limited number of images and videos, a majority of which were in the lowest category of seriousness, his offending remained serious in that it contributed to the exploitation of children. Furthermore, the appellant not only accessed the material, but also transmitted it to others who shared the same depraved interests.
However, there was evidence that the appellant came before the sentencing Judge as a person of otherwise good character. He had worked as a successful chiropractor and had contributed significantly to the swimming community as a volunteer. He had no prior convictions and was accepted to be genuinely remorseful and contrite.
The sentencing Judge had before him two reports of a psychologist, Mr Richard Balfour, which were dated 24 November 2020 and 15 December 2020. In his first report, Mr Balfour expressed the view that the appellant had developed paedophilic proclivities, however this was in its early stages and secondary to the appellant’s interest in adult women. After a consideration of the appellant’s motivation to lead a lawful lifestyle and his lack of denial in relation to the offending, Mr Balfour concluded that the appellant has good prospects of rehabilitation and/or good prospects of ceasing offending with the assistance of a supervised, structured rehabilitation program. These views were maintained in his addendum report, where he expressed his belief that the appellant does not have a continuing interest in child exploitation material. The effect of Mr Balfour’s addendum report will be discussed in more detail later in this judgment.
Notwithstanding the above, the sentencing Judge was not satisfied that there was no risk of the appellant reoffending in the future. His Honour found that the appellant’s interest in child pornography material remains beyond the offending. However, he proceeded on the basis that the appellant has reasonable prospects of rehabilitation given his amenability to treatment.
The sentence
In light of the fact that the offences were of the same type and occurred over a relatively short period of time, the sentencing Judge fixed one sentence for all offences. Despite this, his Honour did identify the notional sentences he would have imposed for each count, after the application of a 20 per cent discount for the guilty pleas.
In respect of counts 1 and 2, the Judge identified notional sentences of seven months and seven days for each count. Having considered that the offending the subjects of counts 1 and 2 related to a single user and occurred over a two-and-a-half week period, a degree of concurrency was deemed to be appropriate. The Judge identified a single notional sentence of 10 months for counts 1 and 2.
In respect of count 3, the Judge identified a notional sentence of five months and 19 days. A notional sentence of seven months and seven days was identified for count 4. As counts 3 and 4 took place over approximately three weeks with a single user, the Judge considered that ‘some concurrency’ was appropriate. A single notional sentence of 10 months was identified for counts 3 and 4. Seven months of this sentence was to be served concurrently with the notional sentence identified for counts 1 and 2, with the remaining three months to be served cumulatively upon that sentence.
In relation to counts 5 and 6, notional sentences of four months and seven months and seven days respectively were identified. As the offending the subject of the counts occurred on consecutive days, a single notional sentence of eight months was identified for both counts. Four months of this sentence was to be served cumulatively upon the abovementioned three-month period, with the remaining four months being concurrent.
Overall, the appellant was sentenced to a head sentence of 17 months imprisonment for all six offences. A non-parole period was not fixed, as the sentence was less than three years.
Having regard to the nature and circumstances of the offending, the appellant’s level of remorse, his prospects of rehabilitation and considerations of deterrence and the need to protect children, the sentencing Judge was not satisfied that it was appropriate for the entire period of 17 months to be the subject of a recognisance release order. However, his Honour considered that it was appropriate for the appellant’s time in prison to be relatively short, as he would benefit from treatment and support from his community and family.
The sentencing Judge ordered that the appellant be released on a two-year recognisance release order after serving five months in prison. The amount of the recognisance was $200. Further conditions were imposed that dealt with the appellant’s obligation to be of good behaviour, his supervision, his participation in rehabilitation programs and treatments and his right to access the internet.
We now turn to discuss the grounds of appeal advanced by the appellant.
Ground 1 – The appellant’s interest in child exploitation material
The first ground of appeal relates to the Judge’s finding that the appellant’s interest in child pornography remains beyond the offending. There are essentially two main complaints in respect of this ground. The first complaint is that the wrong burden of proof was applied in making the finding. The second complaint is that the finding could not be supported by the evidence, having particular regard to the contrary psychological evidence of Mr Balfour.
The burden of proof
As to the first complaint, the appellant submitted that the burden erroneously shifted to the appellant to satisfy the Judge on the balance of probabilities that he no longer had a continuing interest in children. It was submitted that instead, the Judge was obliged to be satisfied beyond reasonable doubt that the appellant had a continuing interest in children before relying upon it to come to any conclusion about the appellant’s prospects of rehabilitation.
This complaint raises for consideration the principles to be applied by a sentencing Judge when determining which matters are to be taken into account for or against an offender.
The obligation of a Judge in this regard was enunciated in R v Storey,[4] and subsequently approved in R v Olbrich:[5]
… the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
[4] [1998] 1 VR 359 at 369.
[5] (1999) 199 CLR 270 at [27].
As the Court observed in Storey, the descriptor ‘aggravating’ or ‘mitigating’ circumstance is often used to describe the distinction. However, the critical analysis required is not what description should be attached to the circumstance or fact, but what use the Judge proposes to make of that particular fact or circumstance in relation to the accused.[6]
[6] R v Storey [1998] 1 VR 359 at 371.
The issue of the appellant’s interest in child pornography material was relevant in two ways. If the interest had ceased entirely, that would be relevant to the assessment of the appellant’s prospects of rehabilitation in a way that would operate in the appellant’s favour and was therefore to be regarded as a mitigating circumstance capable of operating to lower what would otherwise be an appropriate sentence.
If the interest had not entirely dissipated, then it was open to the Judge to conclude that the appellant was still at risk of reoffending. In that event, personal deterrence would play a greater role in determining an appropriate sentence. However, the circumstance or fact must be proved beyond reasonable doubt.
Even though the circumstance was capable of being described as aggravating or mitigating, depending on the Judge’s findings on that topic, it was in truth only ever relevant to the issue of the prospects of the appellant’s rehabilitation and the risk of reoffending.
Therefore, it was the ultimate conclusion as to the appellant’s prospects of rehabilitation and the risk of reoffending about which the Judge needed to be satisfied beyond reasonable doubt, rather than any minute analysis of the meaning of one of Mr Balfour’s opinions concerning the appellant’s continued interest.
Contrary to the appellant’s submissions, we consider that the Judge’s approach to the issue was careful and considered. He adopted a nuanced approach to the onus of proof in respect of the disputed matter and correctly found, on the balance of probabilities, that the appellant’s interest in child pornography was not yet behind him. He then carefully considered Mr Balfour’s two reports. He largely accepted the opinion and recommendations of Mr Balfour, however as to the ultimate conclusion in relation to the appellant’s prospects of rehabilitation, he found himself satisfied beyond reasonable doubt that the appellant was at some risk of further offending despite being deeply motivated not to do so.
Despite counsel’s valiant attempts to persuade the Court that the sentencing remarks reveal error in the Judge’s approach to the onus of proof, we consider that the Judge’s remarks reveal a careful and considered analysis of the material before him, precisely in accordance with correct principles.
Finding against the weight of the evidence
As to the second complaint, it was contended that, irrespective of the conclusion reached in relation to the burden of proof, the Judge’s findings were against the weight of the evidence.
The issue of whether the appellant’s admitted sexual interest in children continued after the offending, or whether, as at the time of sentencing submissions, it had ceased to exist, arose during sentencing.
Counsel for the appellant submitted during sentencing submissions that, in light of Mr Balfour’s second report, it was not open to the Judge to come to any conclusion inconsistent with what was characterised by the appellant as an opinion that the appellant’s sexual interest in children had ceased. Accordingly, it was submitted that the appellant should be sentenced on that basis.
In his report dated 15 December 2020, Mr Balfour said the following about the appellant:
To the best of my judgement, I believe that he is sincere in his intention to remain offence free, and his report that he no longer views CEM. Unless there is some new compelling forensic evidence to indicate otherwise, I do not believe that he has a continuing interests in CEM at the time that I assessed him. His interest in CEM had arisen out of his problem with compulsively viewing Internet pornography and becoming habituated. His intimacy deficits are also significant contributing factor to his current offending behaviour. Lastly, his bail conditions severely restrict his use of the Internet, and there is no suggestion that he has breached his bail conditions.
There is always the remote possibility that Mr Young may experience a relapse of his compulsive viewing of Internet pornography and CEM if he were not to receive any professional assistance. However, I am confident that he is highly motivated to participate in rehabilitation, and he does not want to reoffend.
The appellant’s counsel complained that, in light of Mr Balfour’s untested opinion, and there being no other evidence to contradict Mr Balfour’s opinion, the Judge erred in failing to make a finding on the balance of probabilities that the appellant’s interest in children had ceased. It was contended that, therefore, the Judge should have been satisfied on the balance of probabilities that the appellant was to be sentenced on the basis that he no longer had any sexual interest in children and that the proclivity had been extinguished or, in the language of counsel for the appellant, there had been a ‘cessation towards that inclination’.
Related to this submission is the complaint that the Judge erred in concluding beyond reasonable doubt that the appellant was at some risk of further offending, in circumstances where the evidence did not support that conclusion.
The appellant’s submissions in respect of this complaint calls for a careful assessment of all of the evidence which was before the Judge. In particular, this includes the thrust of both of the reports of Mr Balfour, as well as an analysis of the Judge’s sentencing remarks about those reports.

First, it is convenient to reproduce what the Judge said about the topic of the appellant’s continued interest in child pornography and chances of reoffending:
I accept that your remorse and contrition are genuine, but on balance, I am not satisfied that you no longer have any interest in child pornography material. In submissions, you did not dispute that you were sexually aroused by the child pornography material the subject of the offences before me. I find that you were. So much is obvious from the images and videos the subject of your offending, and your communication with the three others about those images.
After submissions, when interviewed by the author of your home detention report, you denied any sexual attraction to minors. Given your offending, and the way you communicated about your stepdaughters, on balance, I do not accept that your sexual interest in child pornography is yet behind you.
You are still engaging in treatment. You have sought treatment in the past from psychologists, and currently. It appears you initially engaged with a psychologist after the breakdown of a past relationship.
One of the psychologists, with whom you have consulted, is a Graeme Piercy. You first saw him about two-and-a-half years ago. You report that that treatment has been for your compulsive sexual behaviour and other personal issues. The detail of any treatment for what I consider to be an ongoing interest in child pornography and the progress of that treatment, has not been the subject of a report from any person treating you on an ongoing basis. I make no finding about the extent of any treatment for your interest in child pornography, nor the extent of its success to date.
You say that the offending arose in the context of an addiction to adult pornography which you have viewed for over two decades. Having assessed you, Mr Balfour has provided two reports. His reports are consistent with you having paedophilic proclivities, albeit it that I am satisfied that yours is a proclivity which has exhibited itself only by accessing and communicating about child pornography. Mr Balfour says that your offending occurred in the context of the addiction to adult pornography and that loneliness was a contributor. You have submitted that you do not view such material anymore and have not done so for over two years. I accept that. There is nothing to the contrary.
I also accept that you are sincere in your wish not to reoffend. You feel enormous shame. The loss of your career, sporting pursuits, and social networks have been a lesson to you about the seriousness of your offending and the need for reform.
Mr Balfour reports that you will benefit from further cognitive behavioural therapy, and that your prognosis with respect to ceasing offending is good. That said, I cannot go so far as to find that you are no longer interested in child pornography, nor that you are at no risk of like offending in the future. As I have said, given that you not only accessed child pornography material but also provided it to others and communicated about it in the fashion you did, I am satisfied beyond a reasonable doubt that there is some risk of further offending despite you being deeply motivated not to do so. That said, I will proceed on the basis that your prospects of rehabilitation are reasonable provided that you engage in appropriate treatment. I accept Mr Balfour’s view that your interest in child pornography is amenable to rehabilitation, and that you have personal strengths and family support which will assist you in that regard. I turn then to your sentence.
The first difficulty with the appellant’s submission is that it is based on the premise that the Judge has effectively rejected the evidence of Mr Balfour. However, when viewed in its proper context, it can be seen from the above that the Judge adopted a far more nuanced approach to Mr Balfour’s evidence than conceded by the appellant’s counsel.
To begin with, Mr Balfour’s evidence did not go so far as to express an unequivocal opinion that the appellant’s interests in child exploitation material had ceased.
In fact, the second report dated 15 December 2020 commenced with an unequivocal statement that ‘the evidence clearly shows that your client has paedophilic proclivities’. Mr Balfour then went on to express the views that are reproduced earlier in these reasons at [40].
It is to be noted, as the Commonwealth Director pointed out in written submissions to the sentencing Judge, that some of the opinions expressed by Mr Balfour in those paragraphs, such as his opinion as to the sincerity of the appellant’s intention to refrain from further offending and his belief that the appellant no longer views child exploitation material, are not to be properly regarded as opinions within the psychologist’s field of expertise.
In addition, the opinion of Mr Balfour is qualified by his own acknowledgement that there is always a remote possibility of a relapse.
Properly understood, we do not consider that there is any irresolvable tension between the opinion of Mr Balfour and the conclusion reached by the Judge that the appellant was still interested in child pornography and that there was some risk that the appellant would reoffend.
The Judge’s conclusion was properly based on all of the material before him, which included not just the reports of Mr Balfour, but the evidence of the appellant’s past behaviour and the depth and nature of the interest he had demonstrated during the period of the four-month offending, which included disseminating the material and communicating with others about it. The evidence made it clear that the appellant was sexually aroused by such material. The Judge had to assess the appellant’s prospects of rehabilitation in light of all of that material.
As an aside it is to be noted that, contrary to the submission of counsel for the appellant, the evidence of Mr Balfour was challenged in the sense that the Commonwealth Director made it clear during sentencing submissions that she did not accept the assertion in Mr Balfour’s second report that the appellant no longer had a sexual interest in children. It is apparent from the transcript that the Judge was acutely conscious of that issue. The Judge directly addressed the appellant’s counsel in respect of this matter:
… Before I forget, the Commonwealth does put that the aspect in mitigation, that is that your client doesn’t have a sexual interest in children, should not be accepted. I put you on notice that I may well find that difficult to accept given this offending.
It is clear from the transcript that both parties were well aware of the conflict between them as to this particular topic. After the Judge raised the matter, both parties made further written submissions on the topic and the Judge returned to the issue in his sentencing remarks.
We dismiss the first ground of appeal.
Grounds 2 and 3 – Failure to order an immediate release upon a recognisance order
The second and third grounds of appeal can be dealt with together. They will be addressed relatively briefly, given the conclusion that we have reached in respect of the first ground of appeal.
The way in which the appellant articulated the second and third grounds of appeal was that, although the sentence of 17 months was within the range available to the Judge and not, in itself, manifestly excessive, the Judge nevertheless should have found that the circumstances justified an order for immediate release. Put another way, it was submitted that the period of five months ordered to be served in prison was manifestly excessive.
In support of this submission, the appellant pointed to the personal circumstances of the appellant, including the fact that he had lost his career, his reputation and standing in the community and the fact that he had voluntarily undertaken psychological counselling and taken other steps towards rehabilitation over a two-year period. The fact that the offending was in the lower range for offences of its kind was also highlighted in support of the argument that special circumstances did exist to make an order for immediate release on recognisance.
Furthermore, the appellant submitted that an immediate release was justified in circumstances where the evidence supported, on the balance of probabilities, that the appellant had good prospects of rehabilitation.
We have already concluded with respect to the first ground of appeal that the Judge made no error in his approach to either the facts or the law when sentencing the appellant. Therefore, much of the appellant’s argument underpinning the second and third grounds of appeal falls away.
It may be accepted that the Judge in this matter was faced with a very difficult sentencing task. However, this Court has made it clear repeatedly that the discretion afforded to sentencing Judges with respect to the decision whether to impose an immediate custodial sentence or not, will not be interfered with by the appellate court simply because another Judge, or indeed the appellate court, might have made a different decision.[7]
[7] For example, see R v Buttigieg [2020] SASCFC 38; R v Irvine [2016] SASCFC 104; R v Neilson [2016] SASCFC 90.
This seems to be one such case. While the offending was indeed very serious, there were many positive aspects in the appellant’s personal circumstances, which meant that it would not have been an error if the Judge had made a decision to order immediate release on recognisance. However, that is not the point.
It is clear that the Judge carefully weighed up the competing considerations and came to a cautiously optimistic view of the appellant’s rehabilitation prospects before determining that a relatively small proportion of the sentence must be served in custody.
With respect, we consider that his Honour’s approach was correct. No error has been demonstrated.
It is relevant to add that each of the offences for which the appellant was convicted carry a maximum penalty of 15 years imprisonment. Until 2010, the maximum penalty under s 474.19 of the Criminal Code had been 10 years. The increase in the maximum penalty to 15 years reflects the gravity with which Parliament views this kind of offending.
Although the number of images involved here was comparatively low, the appellant’s decision to transmit them to others and the level of personal interest he displayed in them were both relevant to the assessment of the gravity of the overall offending.
Plainly, there will always be some rare cases where the circumstances justify an order for immediate release. The Commonwealth Director did not argue to the contrary.
Two cases which were relied on by the appellant, R v Chunza[8] and Cluett v The Queen,[9] in fact illustrate that it is only in exceptional circumstances that such a course is justified. In both Chunza and Cluett, there were very unusual circumstances with respect to both the circumstances of the offending in Cluett, and the appellant’s personal circumstances in Chunza, which plainly justified an order for immediate release.
[8] [2018] SASCFC 74.
[9] (2019) 279 A Crim R 57.
We do not consider that those decisions provide any relevant support for the appellant’s argument in the circumstances here.
For these reasons, we consider that neither ground 2 or ground 3 have been made out. We would grant permission to appeal on both grounds, but dismiss the appeal.
Conclusion
The appeal is dismissed.