Abbott (a pseudonym) v The Queen - [2021] SASCA 131

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ABBOTT (A PSEUDONYM) v THE QUEEN
[2021] SASCA 131
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Stanley)
4 November 2021
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
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to 12 offences involving the sexual exploitation and abuse of children, comprising four counts of aggravated produce child exploitation material contrary to s 63(a) of the Criminal Law Consolidation Act (SA) (the CLCA), three counts of indecent filming contrary to s 26D(1) of the Summary Offences Act 1953 (SA), three counts of aggravated indecent assault contrary to s 56 of the CLCA, one count of aggravated possess child exploitation material contrary to s 63A(1)(a) of the CLCA, and one count of possess child exploitation material contrary to s 63A(1)(a) of the CLCA. The offending occurred over a period between 2007 to 2010 and then 2019 to 2020, against four identifiable victims.
On 18 June 2021 the appellant was sentenced by a Judge of the District Court pursuant to s 26 of the Sentencing Act 2017 (SA). The sentencing judge imposed one sentence of 13 years and 8 days imprisonment for all the offending. A non-parole period of at least four-fifths of the head sentence was fixed pursuant to ss 53 and 54 of the Sentencing Act 2017 (SA), that being 10 years, 4 months and 23 days.
The appellant appealed on four grounds. Each ground was referred to the Court of Appeal for argument as on appeal. The appellant contended that the sentencing judge erred in treating an absence of expressed remorse as an aggravating feature. A further two grounds related to whether the sentencing judge erred in imposing cumulative sentences for offences arising from the “same” conduct. The final ground was of manifest excess.
Held, (the Court) refusing permission to appeal and dismissing the appeal:
1. The sentencing judge did not err in weighing as a factor in sentencing that the appellant demonstrated no sign of wanting to do anything to address his predatory sexual interest in children, when sentencing the appellant for very serious offending against four children. The judge’s sentencing remarks did not indicate that the judge was penalising the appellant for his lack of contrition and remorse. Rather, the judge’s remarks must be understood as highlighting there was no scope for leniency in the appellant’s sentence, given his absence of remorse or contrition and the need to protect the safety of the community.
2. The sentencing judge did not err in imposing cumulative sentences for counts 1 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbott (a pseudonym) v The Queen

Details

AGLC: Abbott (a pseudonym) v The Queen [2021] SASCA 131
Case: [2021] SASCA 131
Decision Date: 4 November 2021

CaseChat Overview and Summary

The Court of Appeal considered an appeal against sentence brought by the appellant, Abbott (a pseudonym), who had been convicted of serious offences involving four children.

The primary legal issues before the Court were whether the sentencing judge erred in her approach to sentencing by considering the appellant's lack of remorse and contrition, whether cumulative sentences for specific counts were wrongly imposed, and whether the final sentence was manifestly excessive given that the indecent assault offending did not involve actual penetration.

The Court reasoned that the sentencing judge was entitled to consider the appellant's absence of remorse and contrition as a factor indicating no scope for leniency, particularly in light of the need to protect the community. The judge's remarks were understood as highlighting this lack of leniency rather than penalising the appellant for his lack of contrition. Furthermore, the Court found that the offending in counts 1 and 12 did not constitute a single course of conduct, justifying the imposition of cumulative sentences due to the different nature and timing of those offences. The judge had also expressly accounted for any overlap between these counts when structuring the sentence. Finally, the Court held that the absence of actual penetration in the indecent assault offending did not render the sentence manifestly excessive, as the circumstances of the offending and the need for deterrence warranted a severe sentence.

Accordingly, the Court refused permission to appeal and dismissed the appeal.

Orders

Orders of the court

Held, (the Court) refusing permission to appeal and dismissing the appeal:

1. The sentencing judge did not err in weighing as a factor in sentencing that the appellant demonstrated no sign of wanting to do anything to address his predatory sexual interest in children, when sentencing the appellant for very serious offending against four children. The judge’s sentencing remarks did not indicate that the judge was penalising the appellant for his lack of contrition and remorse. Rather, the judge’s remarks must be understood as highlighting there was no scope for leniency in the appellant’s sentence, given his absence of remorse or contrition and the need to protect the safety of the community.

2. The sentencing judge did not err in imposing cumulative sentences for counts 1 and 12. The appellant’s offending in counts 1 and 12 was not a single course of conduct. The different nature of the subject offences, coupled with the different occasions when they occurred, was a sufficient justification for the judge to have exercised the sentencing discretion the way she did.

3. The judge expressly stated she took the overlap in the offending between counts 1 and 12 into account when fixing the sentencing. There is no reason to doubt that the judge structured the sentence in the manner she explained.

4. The fact that the appellant’s indecent assault offending did not involve actual penetration does not render the final sentence manifestly excessive. The circumstances of the appellant’s offending, and the need for personal and general deterrence warrant a severe sentence, and the sentence imposed by the sentencing judge is not manifestly excessive.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We refuse permission to appeal on ground 5.Conclusion For the reasons given, the application for permission to appeal is refused.

Ratio Decidendi

Legal Principle Established

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