SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
GLADE v THE QUEEN
[2020] SASCFC 83
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Livesey and The Honourable Justice Bleby)
8 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
The appellant pleaded guilty to one count of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and one count of possession of child exploitation material contrary to s 63A(1)(a) of the Act.
The appellant and victim met on social media. At the time of the offending the appellant was 26 years old and the victim aged 15. The victim had sent the appellant three pornographic photographs of herself which were later recovered on the appellant’s mobile phone. On 10 September 2018 the appellant and victim met in person, and whilst in the backseat of the appellant’s vehicle, he performed cunnilingus on the victim. The appellant and the victim were discovered by the victim’s parents. The police were called and the appellant was arrested.
During his police interview the appellant said that he believed that the victim was aged at least 19 years. He said he believed this because this was the age stated on her social media profile and also because the photographs she had sent him confirmed, at least in his mind, that she was at least 19 years old.
Before the sentencing Judge both counsel agreed that a sentence of imprisonment was appropriate. Further, by operation of the Sentencing Act 2017 (SA) the sentencing Judge was precluded from imposing a suspended sentence or ordering that the sentence be served on home detention. After allowing for time spent on home detention bail and for his early pleas of guilty, the sentencing Judge imposed a single sentence of 12 months’ imprisonment for both counts.
At the time of his offending the appellant was on parole. The sentencing Judge ordered that the sentence that she imposed be served cumulatively upon the unexpired balance of the earlier sentence (one year, three months and nine days) resulting in a head sentence of 27 months and nine days. A non-parole period of 12 months was fixed.
The appellant appeals his sentence of imprisonment on the following grounds:
1. The sentencing Judge failed to consider s 10(2) of the Sentencing Act 2017 (SA), alternatively, the sentencing Judge failed to properly apply s 10(2)(a) or s 10(2)(b) of the Sentencing Act 2017 (SA).
2. The sentence imposed was manifestly excessive as the sentencing Judge erred in not imposing either a bond to be of good behaviour or a shorter sentence of imprisonment.
Held, per Livesey J (Kelly and Bleby JJ agreeing) dismissing the appeal:
1. The sentencing Judge did not err in her approach to s 10 of the Sentencing Act 2017 (SA).
2. Neither the head sentence imposed, nor the non-parole period fixed,…
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- Glade v The Queen [2020] SASCFC 83
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- [2020] SASCFC 83
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CaseChat Overview and Summary
The primary legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in failing to impose a bond under section 97 of the relevant Act, and whether there was a failure to consider, or an error in the application of, section 10(2) of the Sentencing Act 2017 (SA). Section 10(2) mandates that a court must not impose a sentence of imprisonment unless it is satisfied that the seriousness of the offence justifies imprisonment as the only penalty, or that imprisonment is required to protect the community.
The Court reasoned that the sentencing judge's failure to explicitly refer to section 10(2) was not an error, as there was no occasion to consider alternatives to imprisonment. Both parties had agreed that the offending warranted an immediate term of imprisonment. The Court noted that the principle that immediate incarceration is a last resort was well-established prior to the enactment of section 10(2) and was unlikely to have been overlooked. The Court also dismissed a ground of appeal alleging manifest excess in the sentence and non-parole period.
The appeal was dismissed, with permission granted to appeal ground 1, but grounds 1, 1a, and 3 were ultimately 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
Ratio Decidendi
Legal Principle Established
I shall return to whether the sentencing Judge erred in failing to impose a bond under s 97. Consideration of the appeal The appellant contends that appeal grounds 1 and 1a disclose a “specific” or “process” error enlivening the jurisdiction of this Court to intervene.[23] [23] See for example J,AD v The Queen [2020] SASCFC 73, [27]-[30] (Stanley J, with whom Kourakis CJ and Peek J agreed). It will have been noticed that, in essence, ground 1 is inconsistent with and alternative to ground 1a. Ground 1 suggests that there was a failure to consider s 10(2) of the Sentencing Act 2017 (SA), whereas ground 1a suggests that, though s 10(2) was considered, there was error associated with its application. Sub-section 10(2) provides:(2)Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that—(a) the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or(b) it is required for the purpose of protecting the safety of the community (whether as individuals or in general). In my opinion, the failure by the sentencing Judge to refer to s 10(2) is of no moment. Not only is a sentencing Judge not required to refer explicitly to every consideration relevant to sentence,[24] there was here no occasion to refer to a provision relating to a matter which was regarded by both sides as clear: the offending in this case required the imposition of an immediate term of imprisonment. [24] R v Reiner (1974) 8 SASR 102, 106 (Bray CJ), 114-115 (Wells J). Accordingly, whilst I would not necessarily preclude a prisoner from challenging a sentence, or an aspect of a sentence, notwithstanding an earlier concession to the contrary, I would be reluctant to find that the exercise of sentencing discretion was flawed, or to entertain any contention that the reasons for sentence were inadequate, because they did not explicitly review something that was not in issue or not the subject of any submissions. Sub-section 10(2) was not mentioned because there was, before the sentencing Judge, no occasion to consider alternatives to imprisonment. Nonetheless, the general sentencing practice that immediate incarceration is, effectively, a matter of last resort (“the only penalty that can be justified”) was well recognised long before s 10(2) and it is not a matter which is likely to have been overlooked or ignored.[25] In that context, this case provided no occasion for any careful evaluation of the various features of s 10(2).[26] A sentencing Judge cannot be expected to address, or provide reasons for, a case which is not before her though it might eventually be pressed in the event of an appeal. [25] Webb v O’Sullivan [1952] SASR 65, 66 (Napier CJ).[26] For example, such as whether, under s 10(2) of the Sentencing Act 2017 (SA), a sentencing Judge may consider the broader circumstances of the offending, including the offender’s antecedents as well as the seriousness of the actual offence, Nicolle v Police (2019) 133 SASR 448, [14]-[15] (David AJ).