Aubrey v The Queen - [2021] SASCA 71

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
AUBREY v THE QUEEN
[2021] SASCA 71
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Bleby and the Honourable Justice Blue)
15 July 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
Appeal against sentence.
Following a trial by judge alone, the appellant was convicted of nine counts of possessing child exploitation material (‘CEM’) and six counts of aggravated possession of CEM, each count attracting maximum penalties of five and seven years’ imprisonment respectively.
The appellant was sentenced to two and half years’ imprisonment for the offending, with a non-parole period of 18 months. The sentencing judge declined to order that the sentence be suspended or that it be served on home detention.
The appellant contended that when the judge turned her mind to the paramount consideration of the safety of the community, pursuant to s 69(2) of the Sentencing Act 2017 (SA), she failed to undertake a two stage process identified in R v Dell and failed to have regard to factors and recommendations contained in a psychological report which pointed to the conclusion that the safety of the community would be enhanced by the appellant serving his sentence on home detention.
Held (by the Court), dismissing the appeal:
1. There was no issue whether the appellant was a suitable candidate for a home detention order, being the first stage of the two stage process, and no need for the judge to make or express a finding on this question.
2. The judge manifestly gave consideration to the matters about which the appellant complains.
3. It was open to the judge to give particular weight to the principle of general deterrence in sentencing the appellant. The sentencing remarks do not indicate error.
Criminal Law (Sentencing) Act 1988 (SA) s 33BB(3); Sentencing Act 2017 (SA) ss 69(2), 71(1), Sch 1 cl 1, referred to.
Liddicoat v The Queen [2021] SASCA 18; R v Dell & Dell (2016) 126 SASR 571, considered.

AUBREY v THE QUEEN
[2021] SASCA 71

Court of Appeal - Criminal: Kelly P, Bleby JA & Blue AJA

THE COURT: This appeal against sentence raises an issue of whether the sentencing judge correctly applied the applicable statutory criteria in determining that the sentence imposed should not be served on home detention.
Following a trial by judge alone, the appellant was convicted of nine counts of possessing child exploitation material (‘CEM’), each attracting a maximum penalty of up to five years’ imprisonment, and six counts of aggravated possession of CEM, each attracting a maximum penalty of up to seven years’ imprisonment.
The appellant was sentenced to two and half years’ imprisonment for the offending, with a non-parole period of 18 months. The sentencing judge declined to order that the sentence be suspended or that it be served on home…

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 Aubrey v The Queen

Details

AGLC: Aubrey v The Queen [2021] SASCA 71
Case: [2021] SASCA 71
Decision Date: 15 July 2021

CaseChat Overview and Summary

In *Aubrey v The Queen*, the appellant appealed against a sentence imposed by a judge of the Supreme Court of Queensland. The appeal concerned the sentencing of the appellant for offences related to child exploitation material.

The primary legal issues before the Court of Appeal were whether the sentencing judge had erred in her consideration of the matters relevant to sentencing, specifically regarding the appellant's suitability for a home detention order and the weight given to the principle of general deterrence. The appellant also contended that the judge failed to adequately consider his rehabilitation.

The Court of Appeal held that there was no requirement for the sentencing judge to make a specific finding on the appellant's suitability for a home detention order, as this was a preliminary consideration. The Court found that the judge had manifestly considered the matters raised by the appellant, including rehabilitation. It was open to the judge to give particular weight to general deterrence, especially in circumstances where the appellant continued to deny the offending and showed no remorse. The Court concluded that the sentencing remarks did not disclose any error. Accordingly, the appeal was dismissed.

Orders

Orders of the court

Held (by the Court), dismissing the appeal:

1. There was no issue whether the appellant was a suitable candidate for a home detention order, being the first stage of the two stage process, and no need for the judge to make or express a finding on this question.

2. The judge manifestly gave consideration to the matters about which the appellant complains.

3. It was open to the judge to give particular weight to the principle of general deterrence in sentencing the appellant. The sentencing remarks do not indicate error.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The judge manifestly gave consideration to the matters about which the appellant complains. As counsel for the Director submitted, she clearly took the view that the protection of the community was best served in this case by giving particular weight to the principle of general deterrence. It was open for her to do so. Having considered expressly what would be required for the appellant’s rehabilitation, in the circumstances of the appellant’s continued denial of the offending and lack of remorse, it was not necessary to go further and rehearse those possibilities again when considering the course that would best serve the protection of the community. The sentencing remarks do not indicate error.Conclusion We dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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