Cromb v The King; Pay v The King - [2024] SASCA 8

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CROMB v THE KING; PAY v THE KING
[2024] SASCA 8
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Kimber)
8 February 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AND OTHER MATTERS RELATING TO TERRORISM - TERRORIST ORGANISATION
The applicants each pleaded guilty to one count of possessing a document or record containing information of a kind likely to be of practical use to a person committing a terrorist act, contrary to s 83CA of the Criminal Law Consolidation Act 1935 (SA). Each applicant possessed the same two documents in hard copy and electronic form. The documents were authored by notorious extremists and contained instructions on how to conduct violent attacks and cause widespread disruption. At the time of the offence, both applicants held, or had held, leadership positions within extremist white supremacist groups. At the time of sentence, each applicant continued to hold the views which led them to possess the documents the subject of the offence.
After reductions of 15 per cent discount for the guilty pleas, Mr Cromb received a head sentence of two years, six months and 19 days with a non-parole period of 18 months and Mr Pay received a head sentence of two years, one month and 16 days with a non-parole period of 14 months. The sentencing Judge refused to order that the sentences be suspended or served on home detention.
Both applicants appeal their respective sentences.
Mr Cromb contends there is unjustified disparity between his sentence and that imposed on Mr Pay. Mr Cromb also contends that the sentencing Judge erred in her assessment of his risk of reoffending; his risk to the safety of the community; and his prospects of rehabilitation. Mr Pay contends the sentencing Judge erred in her assessment of his prospects of rehabilitation; in her approach to his autism spectrum disorder and that he was sentenced for a different offence to that the subject of his guilty plea. Both applicants contend that the sentencing Judge found that in committing the offence, they intended to cause fear and distress and contend that finding was not open. Both applicants contend that their respective sentences are manifestly excessive.
Held per the Court, granting permission to appeal and dismissing the appeal:
Mr Cromb
1.The difference in the sentence of Mr Cromb compared to that of Mr Pay is justified by Mr Pay being substantially younger than Mr Cromb with the consequence that Mr Pay’s views were not as longstanding or apparently entrenched, making him more…

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

Case: [2024] SASCA 8
Decision Date: 8 February 2024

CaseChat Overview and Summary

In *Cromb v The King* and *Pay v The King*, the applicants appealed against their sentences imposed by the sentencing judge. The appeals concerned the severity of the sentences and the sentencing judge's decision not to suspend them, particularly in light of the applicants' status as members of a terrorist organisation.

The central legal issues before the court were whether the sentences imposed were manifestly excessive, whether there were good reasons to suspend the sentences, and whether the principle of parity with co-offenders or other related offenders warranted a different outcome. The court was required to consider the sentencing judge's exercise of discretion in light of these grounds of appeal.

The court acknowledged the matters raised by the applicants but ultimately found that the sentences, and the refusal to suspend them, fell within the proper exercise of the sentencing judge's discretion. The court did not identify any error in the sentencing process that would justify interference on appeal.

Permission to appeal was granted to both applicants, but their appeals were dismissed.

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

We do not overlook the matters emphasised by the applicants. But in the circumstances, it cannot be said that the sentences imposed, nor the failure to find good reason to suspend, were outside of a proper exercise of the sentencing Judge’s discretion. Conclusion With respect to both applicants, we grant permission to appeal but dismiss the appeals.

Ratio Decidendi

Legal Principle Established

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