(The Honourable President Livesey, the Honourable Justice David and the Honourable Auxiliary Justice Bond)
26 November 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
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
This is an application for permission to appeal against sentence on the basis that the appellant’s sentence is manifestly excessive.
The appellant pleaded guilty to 182 offences and was sentenced to imprisonment for 36 years, together with a non-parole period of 29 years.
The appellant’s offending was prolific and diverse. It spanned four and a half years, concluding upon the appellant’s arrest. Almost 100 separate child victims were involved in the offending the subject of sentence.
There are three broad categories of offending. First, it involved a combination of physical contact offending and communication offending with a range of children, primarily teenage boys. Secondly, the appellant actively participated in the market for child exploitation material, obtaining images of his victims and disseminating them to others over the internet. Thirdly, and at the same time, the appellant obtained, possessed and disseminated child exploitation material from various other sources. The material which the appellant exchanged demonstrated his interest in the worst categories of depraved and degrading child exploitation material.
The appellant contended that the sentence which should have been imposed by the sentencing judge was the lowest available to meet the relevant sentencing objectives in the context of the requirement to protect the safety of the community.
Held (the Court) granting permission to appeal but dismissing the appeal:
1.The approach taken by the appellant in seeking to emphasise community protection and rehabilitation at the expense of other relevant sentencing considerations must be rejected. [72]-[75]
2.To consider the availability of indeterminate detention under s 57 of the Sentencing Act 2017 (SA) when determining a head sentence would involve an error of principle. The sentence of imprisonment must be considered in light of the gravity of the crime and its objective circumstances, rather than by reference to the possibility of future events. [81]
3.Even in cases where the sentencing standard in R v D (1997) 69 SASR 413 is not directly applicable, it may still be relevant and influential in cases sharing features similar to those which underpin the sentencing standard, including cases under s 50 of the CLCA. [84]-[87]
4.It is for sentencing courts to make it clear that the community does not tolerate the sexual abuse of children in any capacity, whether in person or over the internet, including by the pernicious production, possession and dissemination of child exploitation material. [88]
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.
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Details
AGLC
Brooker v The King [2024] SASCA 135
Case
[2024] SASCA 135
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentence imposed on the appellant, Brooker, for serious sexual offences against a child. The appeal was heard by the Court of Appeal of the Supreme Court of Tasmania.
The primary legal issue before the Court of Appeal was whether the sentence imposed by the sentencing judge was manifestly excessive, thereby justifying interference on appeal. This required the Court to consider the gravity of the offences, the offender's circumstances, and the principles of sentencing in Tasmania.
The Court acknowledged that the sentence was substantial, describing it as "heavy." However, it found that a firm response and a heavy sentence were warranted given the seriousness of the offending and the appellant's uncertain prospects for rehabilitation. The Court applied established sentencing principles, balancing the need for punishment and deterrence with considerations of the offender's individual circumstances.
Permission to appeal was granted, but the appeal itself was dismissed, meaning the original sentence was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Whilst the sentence in this case is rightly described as heavy, a firm response from the sentencing court and a heavy sentence were appropriate where the sentencing judge was confronted by such serious offending and an offender who had, at best, uncertain prospects for reform.Conclusion Permission to appeal should be granted but the appeal dismissed.Annexure ASchedule of Offences and Discounts