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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Young v the Queen

Details

AGLC: Young v the Queen [2021] SASCA 51
Case: [2021] SASCA 51
Decision Date: 3 June 2021

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, Mr. Young, by a judge of the Supreme Court of Victoria. The dispute arose from the sentencing judge's determination that Mr. Young's interest in child pornography was not yet behind him, despite submissions from the defence that this interest had ceased. The Court of Appeal was required to consider whether the sentencing judge had erred in his approach to the onus of proof and whether his findings were against the weight of the evidence.

The legal issues before the Court of Appeal were whether the sentencing judge had correctly applied the principles regarding the onus of proof in sentencing, particularly concerning the appellant's asserted cessation of interest in child exploitation material. The court also had to determine if the sentencing judge's findings of fact, made on the balance of probabilities, were unsupported by or contrary to the evidence presented, specifically a report from a psychologist, Mr. Balfour.

The Court of Appeal found that the sentencing judge had adopted a nuanced approach to the onus of proof and correctly concluded, on the balance of probabilities, that the appellant's interest in child pornography was ongoing. The court held that the sentencing judge's remarks demonstrated a careful and considered analysis of the material before him, consistent with correct legal principles. The court rejected the contention that the judge's findings were against the weight of the evidence, finding no error in his approach.

Permission to appeal was granted on the grounds relating to the onus of proof and the weight of the evidence, but the appeal itself was ultimately dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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