COLIN JAMES STOCK v THE KING [2023] SASCA 48

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR CHIEF JUDGE EVANS) DCCRM-21-131 Appellant: COLIN JAMES STOCK Counsel: MR G MEAD SC - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: THE KING Counsel: MR D MCCABE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 11/05/2023 File No/s: SCCRM-22-016836 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. STOCKS v THE KING [2023] SASCA 48 Judgment of the Court of Appeal (ex tempore) (The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David) 11 May 2023 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE On 15 December 2022, the appellant pleaded guilty to one count of disseminating child exploitation material, contrary to s 63(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). This offence is classified as a ‘serious sexual offence’ under the Sentencing Act 2017 (SA) (‘the Sentencing Act’). As such, a court is precluded from suspending any sentence of imprisonment or ordering that any sentence of imprisonment be served on home detention. The sentencing Judge imposed a head sentence of 13 months imprisonment reduced by five per cent on account of the appellant’s guilty plea to one year and 11 days imprisonment. A non-parole period of three months was fixed. Both the head sentence and the non-parole period were backdated to commence on 15 December 2022. The sentencing Judge was not satisfied that good reason existed to proceed pursuant to s 97 of the Sentencing Act. On 22 December 2022, the appellant was granted bail pending appeal. The appellant appealed against his sentence on the following grounds: -- 1 of 8 -- 1. The sentence imposed was manifestly excessive (Ground 1); and 2. The sentencing Judge erred by not ordering that the appellant enter into a bond to be of good behaviour pursuant to s 97 of the Sentencing Act (Ground 2). The Director of Public Prosecutions (‘The Director’) concedes that the sentence imposed was manifestly excessive and that the appellant should be re-sentenced but maintains that a term of imprisonment is required. However, the Director does not go so far as to say that it is not appropriate for this Court to re-sentence the appellant to a good behaviour bond pursuant to s 97 of the Sentencing Act. Held, per the Court, granting permission to appeal and allowing the appeal: 1. The appellant is resentenced. 2. Given the unusual circumstances of this case, good reason exists to proceed under s 97 of the Sentencing Act. Accordingly, the Court imposes a conviction and orders that the appellant enter a bond to be of good behaviour for two years with conditions that he be under the supervision of the Department for Correctional Services for the term of the bond and that he be called up for sentence should he fail to comply with the bond. Criminal Law Consolidation Act 1935 (SA) s 63(b); Sentencing Act 2017 (SA) ss 10(2), 97, referred to. R v Nankivell [2022] SASCA 87, discussed. R v Yousef (2005) 155 A Crim R 134, considered. -- 2 of 8 -- STOCKS v THE KING [2023] SASCA 48 Court of Appeal – Criminal: Doyle, Bleby and David JJA 1 THE COURT: On 15 December 2022, the appellant pleaded guilty to one count of disseminating child exploitation material, contrary to s 63(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). At the time of sentencing, the maximum penalty for an offence against that section was 10 years imprisonment.1 This offence is classified as a ‘serious sexual offence’ under the Sentencing Act 2017 (SA) (‘the Sentencing Act’). As such, a court is precluded from suspending any sentence of imprisonment or ordering that any sentence of imprisonment be served on home detention.2 2 The appellant was sentenced to 13 months imprisonment reduced by five per cent on account of his guilty plea to one year and 11 days imprisonment. A non-parole period of three months was fixed. Both the head sentence and the non-parole period were backdated to commence on 15 December 2022. 3 The appellant now appeals against his sentence on the grounds that the sentence imposed was manifestly excessive (Ground 1); and that the sentencing Judge erred by not ordering that the appellant enter into a bond to be of good behaviour pursuant to s 97 of the Sentencing Act (Ground 2). 4 On 22 December 2022, the appellant was granted bail pending appeal. 5 The question of permission to appeal on both grounds was referred to this Court for consideration. 6 The respondent concedes that the sentence imposed was manifestly excessive and that the appellant should be re-sentenced. For the reasons that follow, we allow the appeal, impose a conviction, and order that the appellant enter a bond to be of good behaviour for two years with conditions that he be under the supervision of the Department for Correctional Services for the term of the bond and be called up for sentence should he fail to comply with the bond. Circumstances of the offending 7 On 29 February 2020, a police officer purporting to be a 37-year old female from Adelaide posted an advertisement on a website called Locanto. The advertisement was titled ‘life’s taboo short’ and the content, in part, said ‘37 real female in taboo, Love family’. The appellant responded to the advertisement by private message on 2 March 2020. 1 The maximum penalty has now been increased to 15 years imprisonment pursuant to s 63(b) of the Criminal Law Consolidation Act 1935 (SA). 2 See Sentencing Act 2017 (SA) ss 71, 96. -- 3 of 8 -- [2023] SASCA 48 The Court 2 8 Upon receiving a response from the undercover police officer, the appellant suggested they move their conversation to a more secure messaging platform: WhatsApp. The appellant proceeded to correspond with the police officer on WhatsApp for about four weeks. The conversations were mainly sexual in nature and often revolved around discussion of mutual ‘taboos’; there was limited sexual reference to children until the conversation the subject of the charged offence on 28 March 2020. 9 On 25 March 2020, the appellant told the police officer that his two nieces, aged four and six, were coming to stay with him at his parent’s home in Modbury. On 28 March 2020 at 7:25pm, messages from the appellant’s WhatsApp account indicated his two nieces were in the bath at his home. In those messages, the appellant described his nieces in sexual terms and said that ‘the older one keeps touching it’ (his penis). Police immediately attended the appellant’s premises at 8:05pm. There were no children present when they arrived. 10 The conversation described above was fictional; the appellant had no children at his premises on the night. The appellant told police that he had made up the events as he wanted to ‘waste the time’ of a sexual predator on the internet. He cooperated with police throughout the investigation. No further child exploitation material was found in his house or in his possession. The appellant was subsequently arrested. 11 In his interview with police, the appellant said he had engaged in conversation with the police officer to ‘mess with them and waste their time’, thinking that the person was a sexual predator. He said he intended in the future to reveal the chat to police in the hope that they would be able to catch the person he had been corresponding with. 12 The appellant was sentenced on the basis that he believed his actions, in communicating with the undercover police officer, might be protecting a child from a sexual predator, rather than for his own sexual satisfaction. Personal circumstances of the appellant 13 At the time of sentencing, the appellant was 33 years old. He was born in Adelaide and is the youngest of four children. He was raised as a Jehovah’s Witness; however, his family left the religion when his older brother came out as homosexual. 14 The appellant did not experience any neglect, violence, or abuse in the family home during his childhood, but he was sexually abused as a child on two separate occasions. Shortly after the second incident of assault, the appellant began to suffer from serious mental health issues. 15 The appellant was a good student at school and had good relationships with his peers. He completed year 12 at high school and went on to obtain a diploma in hospitality and a certificate 3 at TAFE. At the age of 18, the appellant moved to -- 4 of 8 -- [2023] SASCA 48 The Court 3 Hamilton Island with his then partner, whom he later married. That marriage ended after a short period of time. After separating from his first wife, the appellant met his second wife. They moved to her home country of Japan. That marriage ended in about September 2018, and the appellant returned to Australia permanently. At the time of sentencing he was single. 16 The appellant has been employed as a supermarket night filler, a hotel cleaner and as an apprentice baker. He was unemployed for a period between 2015 and 2018, but has been employed for the past four years at a company which manufactures door and window frames. 17 At the time of sentencing, the appellant was living with his parents, both of whom are chronically ill; his father has been diagnosed with prostate cancer and his mother suffers from Lupus. He cares for his parents both physically and financially. 18 Prior to sentencing the appellant was assessed by three medical professionals: Dr Chris Branson, a forensic psychiatrist; Dr Georgina Cheng, a consultant psychiatrist; and Mr Trent Ames, a clinical psychologist. 19 Dr Branson considered that the appellant suffered from severe childhood onset complex post-traumatic stress disorder (‘PTSD’); and the sexual abuse inflicted upon him as a child has had a profound impact on his mental health. Shortly after the second incident of sexual assault, the appellant began to experience a disruptive and manipulative ‘presence’ who he knew as ‘Daniel’. Daniel would, and still does, talk to the appellant in his head, and would often suggest to the appellant that he had a ‘debt to pay’ because he had not reported his own sexual abuse. When the appellant was 18 years old, he experienced more pronounced visions of faces calling for help, crying and screaming. One of those faces was apparently called ‘Katie’. In his report, Dr Branson said that the appellant ‘experiences the psychological phenomenon of disassociation on a very regular basis.’ He also satisfied the criteria for Bipolar Disorder and Major Depressive Disorder. 20 Dr Cheng considered that the appellant’s pseudo-hallucinations were a symptom of PTSD, resulting from incidents of sexual assault that occurred when he was a child. 21 Mr Ames opined that it is ‘[l]ikely that Mr Stocks’ offending is significantly related to his history of childhood sexual abuse and the related pseudo-psychosis’. He explained that the appellant’s history of childhood sexual abuse and his associated feelings of guilt ‘probably led him to believe that he needed to attempt to stop other persecutors.’ Mr Ames considered that the appellant ‘appeared genuine in his belief that he could catch them and pass their details on to the police’ and it is unlikely that if ‘[he] did not have his mental health history, he would have engaged in the offending behaviours.’ -- 5 of 8 -- [2023] SASCA 48 The Court 4 22 The appellant first sought treatment for his mental health when he was living in Japan with his second wife but found it difficult to engage in that support as the consults were via telephone. He did not receive further support until after his arrest in 2020, after experiencing a rapid decline in his mental health including suicidal ideations and two attempts to take his own life. He was subsequently referred to the North-Eastern Community Mental Health Service (‘NECMHS’) and has been able to establish good relationships with a team of mental health care professionals. He has since been receiving a significant amount of support from the staff and community at NECMHS. 23 At the time of offending, the appellant was receiving treatment for his trauma therapy and other mental health conditions. He had 35 hours of one-on-one therapy sessions with Mr Ames with a focus on cognitive behavioural therapy (‘CBT’) and cognitive processing therapy (‘CPT’). He is currently on a wait list to engage in a group-based CPT program offered at PsychMed. Since commencing therapy, the appellant has reported significant improvement in his mental state and is now able to recognise his pseudo-hallucinations, although he continues to experience disassociation, which is a continuing symptom of PTSD. Mr Ames said that the appellant requires ongoing long-term treatment, including one-on-one therapy. He opined that should the appellant be incarcerated this will result in significant deterioration of his mental health and undo his recent progress ‘to a point where he may not be able to re-engage in the future after incarceration.’ 24 The appellant has no criminal history. Re-sentence 25 The respondent concedes that the sentence imposed by the sentencing Judge is manifestly excessive but maintains that a sentence of imprisonment should be imposed. However, the respondent does not go so far as to say that it is not appropriate for this Court to re-sentence the appellant to a good behaviour bond pursuant to s 97 of the Sentencing Act. 26 The principles governing sentencing for child pornography offences were set out by this Court in R v Nankivell.3 In that case, this Court stated that a term of imprisonment is ordinarily warranted unless exceptional circumstances exist.4 27 In the present case, the gravamen of the charged offending was the dissemination of written child exploitation material to a person who appeared to have a sexual interest in such material and that he gave no thought to the risk of further dissemination of the material. However, it is relevant that in the course of the offending, no children were put at risk or involved in the production of the material that was disseminated, and there was no suggestion that the appellant took any steps to act out what he described in his messages. Further, the appellant said in his police interview, and it was accepted by the sentencing Judge, he was not 3 [2022] SASCA 87. 4 R v Nankivell [2022] SASCA 87 at [37] per Livesey P, Doyle and Bleby JJA. -- 6 of 8 -- [2023] SASCA 48 The Court 5 motivated to commit the offence for his own sexual satisfaction, but rather, his complicated history of sexual abuse and compromised mental health led him to want to entrap potential offenders or, in his words, ‘waste their time.’ There was no other child exploitation material located at his premises or on his electronic equipment. 28 Irrespective of the appellant’s specific motivation to commit the offence, we consider the objective seriousness of the offence is at the lowest end of the range by reason of the fact that it was isolated, involved purely fictional written material which put no children at risk in its creation, and was not motivated by the appellant’s sexual interest in children. 29 Significantly, the appellant also suffers from poor mental health which was causally related to the offending. Thus, principles of general deterrence and punishment are of less significance in this matter. There is also a basis to be optimistic about appellant’s prospects of rehabilitation given the reported success of his psychological treatment. Mr Ames considered his risk of re-offending ranged from minimal to no risk at all, and Dr Branson noted there was not any significant risk of re-offending. Moreover, imprisonment is likely to have a significant and detrimental impact on the appellant’s mental health and disrupt his progress. 30 Further, other aspects of the appellant’s personal circumstances are positive. He has no prior criminal history, is currently employed and is the primary carer for his parents, who are both chronically ill. 31 For offences involving the exploitation of children, principles of general deterrence are normally to be emphasised, as well as the paramountcy to be afforded to the protection of the safety of the community, including children, who are vulnerable members of the community. However, in this case, general deterrence assumed less significance by reason of the appellant’s compromised mental health and its causal connection to the offending. Given that his psychological condition has now stabilised, and his rehabilitation is well-advanced it is also unlikely that he will re-offend or pose a threat to the safety of the community. That being so, personal deterrence also assumes less significance in sentence. 32 Under s 10(2) of the Sentencing Act, a court must not impose a sentence of imprisonment unless the court decides that the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or it is required for the purpose of protecting the safety of the community. This is not a case where the objective seriousness of the offending and the personal circumstances of the offender, nor the need to protect the safety of the community, mean that imprisonment is the only justifiable penalty. 33 Under s 97 of the Sentencing Act a good behaviour bond may be imposed if the court ‘thinks that good reason exists for doing so’. The meaning of ‘good -- 7 of 8 -- [2023] SASCA 48 The Court 6 reason’ has been held to include matters such as the character of the defendant,5 the mental condition of the defendant, and the existence of any extenuating circumstances.6 For the reasons outlined above, including the fact that the offending is at the lowest end of the scale of seriousness, and the causal connection between the appellant’s compromised mental health and the offending, and taking into account the one week the appellant has already served in custody, we consider that in the unusual circumstances of this case, it is appropriate to proceed under s 97 of the Sentencing Act. 34 We impose a conviction and order that the appellant enter a bond to be of good behaviour for two years with conditions that he be under the supervision of the Department for Correctional Services and be called up for sentence should he breach that bond. Orders 1. Grant permission to appeal and allow the appeal. 2. Order the appellant to enter a bond to be of good behaviour for two years with conditions that he be under the supervision of the Department for Correctional Services and be called up for sentence should he fail to comply with the bond. 5 It should be noted that for offences of disseminating child exploitation material, the weight to be afforded to prior good character will be limited: R v Nankivell [2022] SASCA 87 at [37] per Livesey P, Doyle and Bleby JJA. 6 R v Yousef (2005) 155 A Crim R 134 at [42]-[47] per Sulan and Layton JJ. -- 8 of 8 --