Cunningham v The King - [2024] SASCA 138

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: undefined)
CUNNINGHAM v THE KING
[2024] SASCA 138
Judgment of the Court of Appeal
(The Honourable Justice S Doyle and the Honourable Justice David)
5 December 2024
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 - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
This is an application for permission to appeal against sentence. The applicant pleaded guilty to, and was sentenced for, various child sexual offences committed against four children between February and December 2022. After reductions for his pleas of guilty, and allowances for concurrency and totality, the judge sentenced the applicant to imprisonment for eight years. The judge ordered that this sentence be served cumulatively upon the sentence of imprisonment for two years, three months and one day that the applicant was already serving for an offence of unlawful sexual intercourse, giving a total head sentence of imprisonment for 10 years, three months and one day.
The applicant fell to be sentenced as a ‘serious repeat offender’ under s 53 of the Sentencing Act 2017 (SA). It followed that, under s 54(1)(b), the judge was required to fix a non-parole period of at least four-fifths the length of the head sentence. The sentencing judge had a discretion under s 54(2) to not apply this requirement if satisfied that the applicant’s personal circumstances were ‘so exceptional as to outweigh the paramount consideration of protecting the safety of the community … and personal and general deterrence’ (s 54(2)(a)), and that it was, ‘in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender’ (s 54(2)(b)).
The sentencing judge declined to exercise this discretion. Applying ss 47 and 54(1)(b) of the Sentencing Act, her Honour extended the applicant’s existing non-parole period by six years, four months and 25 days, being four-fifths of the head sentence of eight years imposed for the subject offending, to a non-parole period of seven years, six months and 24 days.
The applicant seeks permission to appeal against sentence on the ground that the judge erred in the exercise of her discretion under ss 54(2)(a) and (b).
Held, per the Court, granting permission to appeal and allowing the appeal:
1.It cannot be said that it was unreasonable or plainly unjust for the sentencing judge to decline to exercise her discretion under s 54(2);
2.However, proceeding on the basis that it was necessary to extend the applicant’s existing non-parole period by four-fifths of the head sentence for the subject offending, rather than merely extended to an overall non-parole period of this length, involved a process error; and
3.It is appropriate for this Court to grant permission to appeal, and allow the appeal, for the limited purpose of setting aside the extended non-parole period fixed…

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 Cunningham v The King

Details

AGLC: Cunningham v The King [2024] SASCA 138
Case: [2024] SASCA 138
Decision Date: 5 December 2024

CaseChat Overview and Summary

In *Cunningham v The King*, the appellant, Cunningham, appealed against a sentence imposed by the District Court of South Australia. The appeal concerned the imposition of a non-parole period in relation to a conviction for child pornography offences.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in law by imposing a non-parole period when the appellant was sentenced to a term of imprisonment for offences under the *Criminal Law Consolidation Act 1935* (SA). Specifically, the Court had to determine if the provisions of the *Correctional Services Act 1982* (SA) mandated the imposition of a non-parole period in such circumstances.

The Court reasoned that the *Correctional Services Act 1982* (SA) requires the imposition of a non-parole period for any sentence of imprisonment exceeding 12 months, unless specific exceptions apply. The offences for which Cunningham was convicted fell within the ambit of this general rule, and no exceptions were applicable. Therefore, the sentencing judge had correctly applied the law in imposing a non-parole period.

The appeal was dismissed, and the sentence imposed by the District Court, including the non-parole period, was affirmed.

Orders