Edmonds (A Pseudonym) v The Queen

Case [2022] SASCA 11

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

EDMONDS (A PSEUDONYM) v THE QUEEN

[2022] SASCA 11

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

24 February 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

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 - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - GENERALLY

Application for permission to appeal and appeal against sentence.

The applicant pleaded guilty to three counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The victims of his offending were his three step-granddaughters (A, B, and C).

For his offending in relation to A and B, the sentencing Judge imposed a sentence of nine years imprisonment (from a head sentence of 12 years, discounted by 25 per cent on account of his plea of guilty for each offence). For the offending against C, the applicant was sentenced to four years and six months imprisonment (from a head sentence of six years, discounted by 25 per cent on account of his plea of guilty). The sentencing Judge ordered that these three sentences be served cumulatively on the basis that each was a separate course of offending. That sentence, of 22 years and six months, was reduced to 18 years through an application of the principle of totality on the ground the sentence would otherwise be crushing.

Given that the applicant was a serious repeat offender, the sentencing Judge fixed a non-parole period of 14 years, four months and 25 days, being four-fifths of the sentence as required under s 54(1)(b) of the Sentencing Act 2017 (SA).

The applicant seeks permission to appeal against his sentence on the singular ground that it was manifestly excessive, both generally and in that the sentencing Judge did not consider the minimum non-parole period prescribed under the Sentencing Act when determining the appropriate head sentence.

Held, per the Court, granting permission to appeal and allowing the appeal:

1. A sentencing court is required by s 11(4)(a) of the Sentencing Act to determine the head sentence for an offence without having regard to any prescribed mandatory minimum non-parole period in respect of the offence. The imposition of a mandatory minimum non-parole period is not a basis to impugn the head sentences.

2.      The head sentence was nevertheless manifestly excessive.

3.      The sentence is set aside, and the appellant resentenced.

Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50(1); Sentencing Act 2017 (SA) ss 10(1), 11(4), 26, 28(5), 54(1), 54(2); Criminal Law (Sentencing) Act 1988 (SA) s 10(1a); Criminal Law (Sentencing)…

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Edmonds (A Pseudonym) v The Queen [2022] SASCA 11
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[2022] SASCA 11
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CaseChat Overview and Summary

The applicant, referred to as Edmonds (A Pseudonym), sought permission to appeal and appealed against a sentence imposed by a sentencing judge in South Australia. The dispute concerned the applicant's conviction on three counts of maintaining an unlawful sexual relationship with a child, contrary to section 50(1) of the *Criminal Law Consolidation Act 1935* (SA). The victims were his three step-granddaughters. The sentencing judge imposed cumulative sentences for each offence, which were then adjusted for totality, and a non-parole period was fixed. The applicant's sole ground of appeal was that the sentence was manifestly excessive.

The Court of Criminal Appeal of South Australia was required to determine two primary legal issues. Firstly, whether the sentencing judge erred by considering the mandatory minimum non-parole period when determining the head sentence, and secondly, whether the overall sentence imposed was manifestly excessive. The applicant also contended that the sentencing judge failed to consider the minimum non-parole period prescribed by the *Sentencing Act 2017* (SA) when fixing the head sentence.

The Court held that a sentencing court is mandated by section 11(4)(a) of the *Sentencing Act* to determine the head sentence for an offence without regard to any prescribed mandatory minimum non-parole period. Therefore, the imposition of such a minimum non-parole period was not a valid ground to challenge the head sentences themselves. However, the Court found that the head sentence was nevertheless manifestly excessive. Consequently, the Court granted permission to appeal, allowed the appeal, set aside the original sentence, and resentenced the applicant to a single term of 15 years imprisonment with a non-parole period of 12 years, backdated to the original sentencing date.

Orders

Orders of the court

Application for permission to appeal and appeal against sentence.

The applicant pleaded guilty to three counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The victims of his offending were his three step-granddaughters (A, B, and C).

For his offending in relation to A and B, the sentencing Judge imposed a sentence of nine years imprisonment (from a head sentence of 12 years, discounted by 25 per cent on account of his plea of guilty for each offence). For the offending against C, the applicant was sentenced to four years and six months imprisonment (from a head sentence of nine years, discounted by 25 per cent on account of his plea of guilty). The sentencing Judge ordered that these three sentences be served cumulatively on the basis that each was a separate course of offending. That sentence, of 22 years and six months, was reduced to 18 years through an application of the principle of totality on the ground the sentence would otherwise be crushing.

Given that the applicant was a serious repeat offender, the sentencing Judge fixed a non-parole period of 14 years, four months and 25 days, being four-fifths of the sentence as required under s 54(1)(b) of the Sentencing Act 2017 (SA).

The applicant seeks permission to appeal against his sentence on the singular ground that it was manifestly excessive, both generally and in that the sentencing Judge did not consider the minimum non-parole period prescribed under the Sentencing Act when determining the appropriate head sentence.

Held, per the Court, granting permission to appeal and allowing the appeal:

1. A sentencing court is required by s 11(4)(a) of the Sentencing Act to determine the head sentence for an offence without having regard to any prescribed mandatory minimum non-parole period in respect of the offence. The imposition of a mandatory minimum non-parole period is not a basis to impugn the head sentences.

2. The head sentence was nevertheless manifestly excessive.

3. The sentence is set aside, and the appellant resentenced.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was not contended that it was permissible or appropriate to suspend this sentence of imprisonment, or to order that it be served on home detention.Conclusion We grant permission to appeal and allow the appeal; set aside the sentence of imprisonment imposed by the sentencing Judge; substitute in lieu thereof a single sentence of 15 years imprisonment; and fix a non-parole period of 12 years. Both the sentence of imprisonment and the non-parole period are backdated to commence on 1 September 2021, being the date the applicant was originally sentenced. The intervention order made by the sentencing Judge under s 28(5) of the Sentencing Act will remain in force.

Ratio Decidendi

Legal Principle Established

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