R v Ashman  ACTSC 45 (21 May 2010)
In this case, the ACT Supreme Court recognised that the right to family and the best interests of children under the Human Rights Act 2004 (ACT) may be relevant to the sentencing of a parent or guardian.
In this case, Mr Ashman pleaded guilty to one count of using a carriage service (an internet service provider) to access child pornography and to one count of intentionally possessing child pornography. The court’s task was to sentence him for these offences.
A search warrant had revealed that Mr Ashman was in possession of seven DVDs of child pornography, amounting to ‘a significant but not very large amount of material depicting some hundreds of children, all disturbing and the majority being the more serious level of sexual activity’. A psychologist’s report revealed that he was not, however, a paedophile and would not re-offend.
Mr Ashman had no prior criminal record and showed remorse for his actions. He was the father of three children and his wife suffered a debilitating post-traumatic stress disorder, which rendered her unable to be the principal carer for the children.
Refshauge J sentenced Mr Ashman to 27 months imprisonment in compliance. He then suspended this sentence and replaced it with 300 hours of community service work and a probation period of 3 years.
Both the Crimes Act 1914 (Cth) and the Crimes (Sentencing) Act 2005 (ACT) require the court to consider the effect that a sentence would have on the offender’s family. To this effect, Refshauge J applied Craft v Diebert, which identified that whilst courts would be remiss to give undue weight to personal or sentimental factors, and must ultimately deliver an adequate punishment, they were not to disregard this consideration in all but the most exceptional cases either.
In addition, Refshauge J noted his statutory obligation to recognize the rights of children under s 11 of the HRA, citing R v McLaughlin (ACTSC, SCC 222 of 2008). This case held that the HRA mandates consideration of the potential hardship caused to children by sentencing decisions. The case also cited the South African Constitutional Court decision in M v The State  ZACC 18, which construed this right to mean that the interests of children must be taken into account, even where the offence is very serious.
The decision is at www.courts.act.gov.au/supreme/judgments/ashman.htm.
ACT Human Rights Act Project Team