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6
District Court 18 April 2008

R v Nigel Keith SADDLER

[2008] NSWDC 48

Sexual offences
CRIMINAL LAW SENTENCE FORM 1 CHILD PORNOGRAPHY COPINE SCALE GROSS ABUSE

Citation: R v Nigel Keith Saddler [2008] NSWDC 48
Court: District Court of New South Wales
Date: 18 April 2008
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to three counts of possessing child pornography. The material, stored across three separate locations including a vehicle and his home, comprised 35,508 still images, 687 movie files, and 77 archived files. He also asked the court to take into account two further possession offences on a Form 1 (a document that allows related offences to be considered at sentencing without separate conviction).

The volume of material was extraordinary. The images and videos depicted thousands of children, including babies under 12 months of age, being subjected to serious sexual abuse. Much of the material reached level 10 on the COPINE Scale, the classification system used to grade the severity of child pornography, which represents the most serious category involving pain or animals.

The court described the material as among the most depraved it had encountered, and the sentencing judgment addressed at length why the circumstances warranted sentences at or near the maximum.

  • What sentences were appropriate for each of the three charges, having regard to the volume and severity of the material?
  • How should the Form 1 offences be reflected in the sentences imposed?
  • Whether concurrent or cumulative (partially overlapping) sentences were required to reflect the total criminality involved.
  • Whether special circumstances existed to justify adjusting the standard ratio between the non-parole period and the head sentence.

Decision

The court found that the sheer number of items, the extreme severity of the content, and the separate storage locations all pointed to sentences at or near the statutory maximum for each charge. The COPINE Scale classification of much of the material at level 10 was a significant aggravating factor. The court emphasised that possessing such material creates demand for the underlying abuse of real children, and that harsh sentences serve both deterrence and the expression of community condemnation.

On the question of concurrency, the court applied the principle from R v Wilkins (1988) that cumulative sentences are appropriate where wholly concurrent sentences would not adequately reflect the total criminality involved. The separate storage locations and the distinct categories of material supported partial accumulation of the sentences.

The guilty pleas were taken into account, and the level of accumulation was reduced somewhat in recognition of them. The court found no special circumstances that would justify extending the non-parole period beyond the standard proportion, noting that the effective non-parole period was already the minimum consistent with the gravity of the offending.

Orders Made

  • On the second and third charges: imprisonment with a non-parole period of two years and a head sentence of three years nine months, dating from 22 July 2007.
  • On the first charge (incorporating the Form 1 matters): imprisonment with a non-parole period of three years six months and a head sentence of five years, dating from 22 July 2008.
  • Overall sentence: six years imprisonment with a non-parole period of four years six months, with eligibility for parole on 21 January 2012.

Key Takeaways

  • The District Court confirmed that offences involving child pornography at the highest levels of the COPINE Scale, and in extraordinary volumes, will attract sentences at or near the maximum available penalty.
  • Partial accumulation of sentences across separate charges is appropriate where concurrent sentences would fail to reflect the full extent of the criminality, including where material is stored across distinct locations.
  • The R v Wilkins principle, originally developed in the context of culpable driving causing multiple deaths, was applied here to justify an aggregate sentence exceeding what a single concurrent term would have reflected.
  • A Form 1 (which allows the court to take additional offences into account when sentencing for a principal offence) was used to capture further possession offences, increasing the sentence on the first charge accordingly.
  • General deterrence and denunciation were identified as significant sentencing objectives in this category of offending, given that possession creates demand for material produced through the abuse of real children.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)

Cases:
- R v Wilkins (1988) 28 A Crim R 445
- R v Jones (1999) 108 A Crim R 50
- R v Stroempl (1995) 105 CCC (3d) 187
- Ibbs v The Queen (1987) 163 CLR 447
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Fong (2002) 132 A Crim R 308
- R v Oliver [2003] 1 Cr App R 28
- R v Thompson and Houlton (2000) 49 NSWLR 383
- R v Price [2004] NSWCCA 186
- R v Knight [2004] NSWCCA 145
- Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
- Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
- Police v Power [2007] NSWLC 1
- Power v DPP (unreported, DC NSW, 19 July 2007)