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45
Court of Criminal Appeal 6 April 2009

R v Rodric David BOOTH

[2009] NSWCCA 89

Sexual offences
CRIMINAL LAW SENTENCE CHILD PORNOGRAPHY CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE SENTENCE MANIFESTLY INADEQUATE

Citation: R v Rodric David BOOTH [2009] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 6 April 2009
Judge(s): McClellan CJ at CL, Simpson J, Howie J

Background

The respondent pleaded guilty in the District Court to a charge of possessing child pornography under s 91H(3) of the Crimes Act 1900 (since repealed), which carried a maximum penalty of five years imprisonment. Police executing a search warrant at his home found printed images, a computer disk, a hard drive containing folders of images, and a video, all depicting naked and sexually active young males under the age of 16, and some apparently under 10. The material had been sourced from the internet.

The respondent had a prior criminal history that was directly relevant. In 1997, he was convicted of 14 sexual offences against the young son of family friends, as well as a prior child pornography offence, and served a substantial term of imprisonment. While in custody he voluntarily undertook a sex offenders rehabilitation programme.

At the 2008 sentencing, Williams DCJ in the District Court did not impose a custodial sentence. Instead, his Honour imposed a four-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, with conditions including continued counselling and participation in sex offender programmes. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the four-year good behaviour bond imposed by the District Court was manifestly inadequate for an offence of possessing child pornography, having regard to the respondent's prior offending history and the nature of the material found.
  • Whether the sentencing judge gave sufficient weight to general deterrence in the sentencing exercise.
  • What sentence was appropriate on re-sentencing, applying the principle that a sentence imposed following a successful Crown appeal should sit at the lowest end of the otherwise appropriate range.

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding the original non-custodial sentence was manifestly inadequate. Simpson J (with whom McClellan CJ at CL and Howie J agreed) held that the sentencing judge had erred by failing to give adequate weight to general deterrence, a factor of considerable importance in child pornography offences.

The Court acknowledged the respondent's significant subjective circumstances: his advanced age, his psychological diagnosis of egodystonic homosexuality (broadly, discomfort in accepting a homosexual orientation), his genuine engagement with rehabilitation, favourable assessments from a counsellor and a forensic psychiatrist about reduced risk of reoffending, and strong character evidence from a Church archdeacon. These factors were accepted as relevant but were found insufficient to displace the need for a period of full-time custody.

Of particular weight in the Court's reasoning was the respondent's prior record. He had previously been convicted not only of serious contact sexual offences against a child, but also of possessing child pornography. Reoffending in the same category after serving a substantial prison term substantially diminished the weight available to subjective factors and reinforced the need for general deterrence to be reflected in the sentence.

On re-sentencing, Simpson J applied the principle from R v Thomsen; R v Houlton that a sentence imposed after a successful Crown appeal should fall at the very bottom of the appropriate range, incorporating a 20 per cent discount. The Court also found that special circumstances existed justifying a non-parole period shorter than the statutory ratio, given the respondent's need for structured support on release.

Orders Made

  • The Crown appeal was upheld.
  • The sentence imposed in the District Court on 12 December 2008 was quashed.
  • In lieu thereof, the respondent was sentenced to imprisonment comprising a non-parole period of 6 months commencing 6 April 2009 and expiring 5 October 2009, and a balance of term of 18 months expiring 5 April 2011.
  • The respondent was directed to be released on parole at the expiration of the non-parole period on 5 October 2009.

Key Takeaways

  • General deterrence carries significant weight in sentencing for child pornography offences, and a sentencing court that fails to give it adequate consideration risks imposing a sentence that is manifestly inadequate.
  • A non-custodial bond imposed under s 9 of the Crimes (Sentencing Procedure) Act 1999 was found to be outside the range of appropriate sentences where the offender had a directly relevant prior criminal history, including a prior child pornography conviction.
  • Favourable psychological and character evidence, and demonstrated commitment to rehabilitation, can reduce the weight of custodial considerations but do not necessarily displace the need for full-time imprisonment in serious repeat offending.
  • Where a Crown appeal against manifest inadequacy succeeds, the Court of Criminal Appeal confirmed that the re-sentence should be pitched at the lowest end of the otherwise appropriate range, in accordance with the principle in R v Thomsen; R v Houlton.
  • Special circumstances sufficient to justify a departure from the standard non-parole period ratio may be found where an offender has a demonstrated need for structured supervision and support upon release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(3) (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 44(2)

Cases:
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- Assheton v R [2002] WASCA 209; 132 A Crim R 237
- Mouscas v R [2008] NSWCCA 181
- R v Thomsen; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383