WILLIAM ARTHUR v RACHEL BATTERHAM
[2011] ACTSC 158 (9 September 2011)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 78  of  2011

Judge:	Burns J
Supreme Court of the ACT
Date:	9 September 2011
IN THE SUPREME COURT OF THE	)
	)	No. SCA 78 of  2011
AUSTRALIAN CAPITAL TERRITORY	)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	WILLIAM ARTHUR
			Appellant

AND:		RACHEL BATTERHAM
			Respondent

ORDER

Judge:	Burns J
Date:	9 September 2011
Place:	Canberra

THE COURT ORDERS THAT:

1.	The appeal will be upheld.
2.	The sentence of 10 months imprisonment from 5 August 2011 imposed by her Honour will be confirmed, however it will be varied such that of that term a period of five months imprisonment, commencing on 5 August 2011 and expiring on 4 January 2012, is to be served by way of full time imprisonment.
3.	The balance of the sentence will be suspended and there will be a good behaviour order for a period of two years. 

1.	The appellant, William Noel Arthur, was charged by way of summons with an offence contrary to s 65 of the Crimes Act 1900, alleging that in the Australian Capital Territory on 7 May 2010, he did intentionally possess child pornography.  He entered a plea of guilty to that charge and on 5 August 2011 he was sentenced by Magistrate Walker.  The learned magistrate convicted him of the offence and sentenced him to ten months’ imprisonment.
2.	The appellant appeals from the orders made by her Honour.  There are two grounds which are set out in the Notice of Appeal.  The first ground is that her Honour’s discretion on sentence miscarried on findings of fact not available on the evidence, and secondly, her Honour erred in placing little or no weight on rehabilitation.  If I am to be confined to determining the appeal based upon those two grounds of appeal, then the appeal must be unsuccessful.
3.	However, in argument before me, both Mr Sabharwal, who appears for the appellant, and Mr Doig, who appears for the respondent, have traversed matters beyond those which are relevant to the two specified grounds of appeal.  As such, I propose to allow the appellant to amend the Notice of Appeal to allege a further ground based upon her Honour making an error either of law or fact in the sentencing of the appellant.
4.	I have given very close consideration to the sentencing remarks of the learned Magistrate.  The only matter which concerns me is the approach taken by the learned Magistrate to the question of whether the sentence imposed by her should be suspended either in whole or in part.  It appears to me that the learned Magistrate approached this question on the basis that suspension of the sentence either in whole or in part would be a merciful approach.  One cannot quibble with the fact that a suspension of a sentence of imprisonment can be seen as being merciful and it has been described as such in many decisions.
5.	However it appears to me that her Honour overlooked a relevant consideration and that is that suspension of a term of imprisonment, either in whole or in part, may have another function and that function may be the appropriate protection of the community.  Where a sentence is suspended either in whole or in part the offender will be subject to supervision pursuant to a good behaviour order.  That would provide, in many cases, significant assistance to the authorities in protecting the community from offending behaviour.  In my view that is particularly relevant with respect to this appellant and the offence that he committed.
6.	Her Honour’s failure to advert to the role that suspension either in whole or in part of the sentence may play in protection of the community, in my opinion, was a failure to take into account a relevant consideration which constitutes an error of law.  I may say that I consider the sentence of 10 months’ imprisonment imposed by her Honour to have been appropriate.  However, the protection of the community will be enhanced in this particular case by suspension of part of the term with the provision of a good behaviour order providing for supervision of the appellant.
7.	The appeal will be upheld.  The sentence imposed by her Honour will be confirmed.  That is a sentence of 10 months imprisonment from 5 August 2011, however it will be varied such that of that term a period of five months imprisonment, commencing on 5 August 2011 and expiring on 4 January 2012, is to be served by way of full time imprisonment.  The balance of the sentence will be suspended and there will be a good behaviour order for a period of two years with the appellant providing security, self in the sum of $1,000.  The conditions of that good behaviour order are that:
1)	the appellant will accept the supervision of Corrective Services for that period of two years or such less a period as deemed appropriate by his supervising officer;
2)	the appellant will obey all reasonable directions of officers of Corrective Services;
3)	the appellant is to be assessed for and participate in the Corrective Services Adult Sex Offenders Program if deemed appropriate;
4)	the appellant is to abide by his medication regime for the treatment of depression;
5)	the appellant is to attend, participate and complete any programs, counselling or other courses as directed;
6)	the appellant is to provide access to and periodical monitoring of his computer and software if and when required by the Australian Federal Police Child Sex Offender Registry Team.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate:

Date:	 16 September 2011

Counsel for the appellant:	Mr J Sabharwal
Solicitor for the appellant:	Rachel Bird & Co
Counsel for the respondent:	Mr A Doig
Solicitor for the respondent:	ACT Director of Public Prosecutions
Date of hearing:	9 September 2011
Date of judgment:	9 September 2011