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21
Court of Criminal Appeal 31 March 2009

Saddler v R

[2009] NSWCCA 83

Also reported as (2009) 194 A Crim R 452
Sexual offences
CRIMINAL LAW SENTENCING POSSESSION OF CHILD PORNOGRAPHY (X3) WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Saddler v R [2009] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 31 March 2009
Judge(s): Grove J, Buddin J, Price J

Background

The applicant pleaded guilty in the Local Court to three counts of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900, and adhered to those pleas when sentenced in the District Court. The material involved tens of thousands of images and video files, stored across an external hard drive found in his vehicle and further devices found at his premises. The images ranged across all levels of the COPINE scale, including the most severe categories, and depicted children from infancy through early adolescence.

In the District Court, the sentencing judge imposed a total effective sentence of 6 years imprisonment with a non-parole period of 4 years and 6 months. The sentence on count 1, which was accumulated on the sentences for counts 2 and 3, was 5 years with a non-parole period of 3 years and 6 months.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentencing judge had wrongly applied certain aggravating factors and that the sentences were manifestly excessive.

  • Whether the sentencing judge wrongly characterised the offending as "part of planned or organized criminal activity" under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, thereby treating it as an aggravating factor
  • Whether the interaction between s 21A(2)(n) (aggravating factor: planned or organised criminal activity) and s 21A(3)(b) (mitigating factor: offence not part of planned or organised criminal activity) was correctly applied
  • Whether the imposition of what amounted to the maximum available penalty was warranted on the facts
  • Whether the sentences, taken individually or in combination, were manifestly excessive
  • What weight should be given to the applicant's guilty plea and post-sentence conduct

Decision

The Court of Criminal Appeal granted leave to appeal and found that the District Court had erred in treating the offending as "part of planned or organized criminal activity." While the volume and organisation of the material might have suggested significant activity, the court held that characterisation was not made out on the facts and constituted an error in the application of the aggravating factors under the Crimes (Sentencing Procedure) Act 1999.

Grove J made additional remarks about the tension between s 21A(2)(n) and s 21A(3)(b). He noted the established common law principle that the absence of an aggravating factor is not itself a mitigating factor. However, the legislature had expressly enacted the converse position in s 21A(3)(b), creating what his Honour described as a recipe for unnecessary complication and potential confusion for sentencing judges.

The Court confirmed the sentences on counts 2 and 3 but reduced the sentence on count 1. Buddin J concluded that, even accounting for the fact the material was held solely for private use, the sheer volume, the ages of the children depicted, and the severity of the content placed the offending in the upper echelons of this type of offending. The reduction to count 1 was designed to give the applicant meaningful credit for his guilty plea while still reflecting the seriousness of the Form 1 matters.

The Court also noted that the maximum penalty for these offences had since increased from 5 years to 10 years imprisonment. Both Grove and Buddin JJ observed that prior decisions, including this one, would provide no useful sentencing guidance for future offences given that the increased maximum reflects a revised legislative intention about the gravity of such conduct.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences on counts 2 and 3 confirmed
  • Sentence on count 1 quashed and replaced with a non-parole period of 2 years and 9 months, with an overall term of 4 years, commencing 22 July 2008
  • Total effective sentence: 5 years imprisonment with a non-parole period of 3 years and 9 months

Key Takeaways

  • The Court of Criminal Appeal held that characterising a large private collection of child pornography as "part of planned or organized criminal activity" under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 was an error where the facts did not support that conclusion.
  • A statutory tension exists between s 21A(2)(n), which treats planned or organised criminal activity as aggravating, and s 21A(3)(b), which treats the absence of such activity as mitigating. Grove J observed that this creates real complexity for sentencing courts, since the common law does not ordinarily treat the absence of an aggravating factor as a mitigating one.
  • Under s 21A(5), a sentencing court is not automatically required to increase or reduce a sentence merely because an aggravating or mitigating factor is present; the weight given to such factors remains a matter of judicial judgment.
  • Upholding the reduced sentence for count 1, the Court confirmed that offending involving very large numbers of images spanning all severity levels of the COPINE scale, including the most extreme categories, falls into the upper range of this type of offending, even where possession was for private use only.
  • Because the maximum penalty for possession of child pornography has since increased from 5 to 10 years imprisonment, the Court expressly noted that earlier decisions, including this case, will not serve as useful sentencing benchmarks for future offending of this kind.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 21A(3)(b), 21A(5)
- Customs Act 1901 (Cth)

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, unreported, 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