Gonis v The King
[2024] SASCA 42
•4 April 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
GONIS v THE KING
[2024] SASCA 42
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
4 April 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
Appeal against sentence.
The applicant pleaded guilty to a number of State and Commonwealth offences relating to material depicting the sexual abuse or exploitation of children. For the State offending, the applicant pleaded guilty to one count of basic possession of child exploitation material (‘CEM’) and one count of aggravated possession of CEM contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA). For the Commonwealth offending, the applicant pleaded guilty to three counts of using a carriage service to access child pornography material (‘CPM’) and one count of using a carriage service to transmit CPM contrary to ss 474.19(1)(a)(i) and 474.19(1)(a)(iii) of the Criminal Code Act 1995 (Cth) respectively.
On 11 September 2023, a judge of the District Court sentenced the applicant to a term of imprisonment of two years for the State offence of basic possession of CEM, and three years and four months imprisonment for the State offence of aggravated possession of CEM. The judge then reduced the sentence in accordance with the applicable discount. Once a further seven-month reduction was made to account for time spent in custody and on home detention bail, the resultant head sentence for the two State offences was one year and five months imprisonment with a non-parole period of nine months. The head sentence and the non-parole period were backdated to commence on 13 July 2023, the date the applicant was taken into custody.
In relation to the Commonwealth offences, the judge imposed a final sentence of three years and nine months with a non-parole period of two years, to commence on 13 October 2023.
The applicant complained on appeal that the sentencing discretion miscarried, as the sentence did not adequately reflect the reduction ordered by the sentencing judge on account of time spent in custody and on home detention bail; and that the practical effect of the sentence was to deprive him of the credit he was afforded on account of time spent in custody and home detention bail.
Held (by the Court), granting permission to appeal, allowing the appeal and resentencing the applicant:
1.The sentencing judge failed to have regard to a material consideration, that is, that by applying the seven-month reduction to the sentence for the State offences rather than the sentences for the Commonwealth offences, this would deprive the reduction he intended of any effect.
2.The applicant is resentenced in respect of the State offending to an effective total head sentence of two years’ imprisonment, with a non-parole period of one year and four months. This is backdated to commence on 13 July 2023.
3.The applicant is resentenced in respect of the Commonwealth offending to an effective total head sentence of three years and two months’ imprisonment, with a non-parole period of one year and five months. This is backdated to commence on 13 October 2023.
Criminal Law Consolidation Act 1935 (SA) s 63A; Criminal Code Act 1995 (Cth) ss 474.19(1)(a)(i) and 474.19(1)(a)(iii); Crimes Act 1914 (Cth) s 16E; Legislation Interpretation Act 2021 (SA) (SA) s 10(1); Sentencing Act 2017 (SA) s 44(2), referred to.
Burdon v The King [2023] SASCA 71; House v The King (1936) 55 CLR 499; RF Brown & Co Ltd v T and J Harrison (1927) 43 TLR 633; R v Deng [2015] SASCFC 176; R v Tsonis (2018) 131 SASR 416; Omerod v Blaslov (1989) 52 SSR 263; Pileggi v Australian Sports Drug Agency (2004) 138 FCR 107, considered.
GONIS v THE KING
[2024] SASCA 42Court of Appeal – Criminal: Doyle, Bleby and David JJA
THE COURT: This is an application for permission to appeal against sentence. The complaint on appeal is that the sentencing discretion miscarried, as:
·the sentence does not adequately reflect the reduction ordered by the sentencing judge on account of time spent in custody and on home detention bail; and
·the practical effect of the sentence is to deprive the applicant of the credit he was afforded on account of time spent in custody and home detention bail.
Background
The applicant pleaded guilty to a number of State and Commonwealth offences relating to material depicting the sexual abuse or exploitation of children. He was sentenced on 11 September 2023.
The State offending
The applicant pleaded guilty to and was sentenced for:
·one count of aggravated possession of child exploitation material contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (maximum penalty imprisonment for seven years). The judge set a starting point of three years and four months. He reduced that by 40 per cent, resulting in imprisonment for two years; and
·one count of basic possession of child exploitation material contrary to s 63A of the CLCA (maximum penalty imprisonment for five years). The judge set a starting point of two years. He reduced that by 40 per cent, resulting in imprisonment for one year, two months and 12 days.
The judge ordered that these sentences were to be served concurrently. He fixed a non-parole period of one year and four months.
Prior to being sentenced, the applicant had spent three months and 26 days in custody and 11 months and 21 days subject to home detention bail. The judge considered that the applicant was eligible for a total reduction of seven months on account of the time spent in custody and on home detention bail. The final head sentence for the State offending was imprisonment for one year and five months. The judge fixed a non-parole period of nine months. He ordered that the sentence be backdated to commence from 13 July 2023, when bail was revoked.
The Commonwealth offending
The applicant pleaded guilty to and was sentenced for:
·three counts of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code Act (Cth) 1995 (‘the Code’) (maximum penalty imprisonment for 15 years):
·in respect of Count 1, which concerned accessing child pornography between 6 January 2017 and 1 December 2017, the judge set a starting point of three years and four months. He reduced that by 10 per cent, resulting in imprisonment for three years;
·in respect of Count 2, which concerned accessing child pornography between 7 February 2019 and 8 March 2019, the judge set a starting point of two years and three months. He reduced that by 10 per cent, resulting in imprisonment for two years and nine days; and
·in respect of Count 4, which concerned accessing child pornography on 19 February 2019 and 5 March 2019, the judge set a starting point of 10 months. He reduced that by 10 per cent, resulting in imprisonment for nine months;
·one count of using a carriage service to transmit child pornography material contrary to s 474.19(1)(a)(iii) of the Code (maximum penalty imprisonment for 15 years). This was Count 3 on the Commonwealth Information. It concerned transmitting child pornography on 19 February 2019 and 5 March 2019. The judge set a starting point of one year and six months. He reduced that by 10 per cent, resulting in imprisonment for one year, four months and six days.
The judge ordered that nine months of the sentence for Count 2 be served cumulatively upon the sentence imposed for Count 1. The result in respect of these two counts was a period of imprisonment for three years and nine months. The judge then ordered that two months of the sentence for Count 4 were to be served cumulatively upon the sentence imposed for Count 3. The result was a period of imprisonment of one year, six months and six days for Counts 3 and 4.
The judge then ordered that the two accumulated sentences were to be served wholly concurrently. This resulted in a sentence of imprisonment of three years and nine months for the four Commonwealth offences.
The judge fixed a non-parole period of two years. He considered that the connection between the State offending and the Commonwealth offending justified a substantial period of concurrency. On that basis, he ordered that the Commonwealth sentence was to commence from 13 October 2023.
The final result was that in respect of the State offending, the applicant was sentenced to imprisonment for one year and five months with a non-parole period of nine months commencing on 13 July 2023. For the Commonwealth offending, the applicant was sentenced to imprisonment of three years and nine months with a non-parole period of imprisonment for two years, commencing on 13 October 2023.
The sentence of imprisonment for the State offending was therefore destined to expire well before the sentence for the Commonwealth offending. Importantly for the applicant’s argument, the structure of the sentence also meant that the applicant would become eligible for parole in respect of the State offending on 13 April 2024, and in respect of the Commonwealth offending on 13 October 2025.
The factual basis of the offending
The factual basis of the offending can be stated briefly. Police searched the applicant’s home address on 14 March 2019. They seized various electronic devices, the analysis of which revealed child exploitation material. The two State offences related to 955 images and videos of child exploitation material depicting children under 14 years of age (Count 1) and 278 images and videos of child exploitation material depicting children above 14 years of age (Count 2).
Count 1 of the Commonwealth offences concerned a laptop that contained 721 images and videos constituting child pornography material that had been downloaded from the internet between 6 January 2017 and 1 December 2017.
Count 2 concerned a separate laptop that contained 195 images and videos constituting child pornography material downloaded from the internet between 7 February 2019 and 8 March 2019.
Counts 3 and 4 related to the exchange of child pornography material by the applicant in separate ‘Kik’ messenger conversations.
The applicant’s personal circumstances
The applicant is 61 years old. He was the victim of sexual abuse and violence as a child. He suffers from several health issues. He has been unemployed since 2017 and in receipt of a disability support pension. He has been diagnosed with an adjustment disorder with mixed anxiety and depressed mood. Prior to being incarcerated, he was involved in the care of his mother, who has dementia. He has a history of drug use, including methylamphetamine.
The arrest of the applicant and history of the proceedings
On 14 March 2019, police arrested the applicant and released him on bail without home detention conditions. On 10 March 2022, police arrested the applicant for breaching bail by accessing the internet. He was remanded in custody.
On 24 March 2022, the applicant’s bail was revoked in the District Court in relation to both the State and Commonwealth offending.
On 26 April 2022, the applicant entered guilty pleas to four counts of breach of bail. He was sentenced to imprisonment for 18 days. The sentence was backdated to commence on 10 March 2022 and therefore concluded on 27 March 2022.
On 22 July 2022, the applicant was granted bail in the District Court and released subject to home detention conditions. Excluding the sentence of imprisonment for 18 days for the breach bail offending, he spent three months and 26 days in custody between 10 March 2022 and 22 July 2022.
The sentencing judge heard submissions in the District Court on 13 July 2023. He revoked the applicant’s bail on that occasion before sentencing the applicant on 11 September 2023. The applicant had spent a total of 11 months and 21 days subject to home detention bail conditions between 22 July 2022 and sentencing submissions on 13 July 2023. As already noted, the judge reduced the sentence for the State offences by seven months on account of the time spent in custody prior to 13 July 2023 and the time spent on home detention bail. He also backdated the State sentence to commence on 13 July 2023.
The appeal
The complaint on appeal can be stated simply. The applicant takes no issue with the various periods of imprisonment imposed or with their arrangement in terms of accumulation and concurrency. His complaint is that by applying the reduction of seven months to the sentence of imprisonment for the State offences, rather than to the sentences for the Commonwealth offences, the judge deprived him of any benefit of that reduction.
Section 44(2) of the Sentencing Act 2017 (SA) (‘Sentencing Act’) confers a discretion to reduce a State sentence on account of time spent in custody:
(2)If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a)make an appropriate reduction in the term of the sentence; or
(b)direct that the sentence will be taken to have commenced—
(i)on the day on which the defendant was taken into custody; or
(ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
Section 16E of the Crimes Act 1914 (Cth) picks up and applies this section to sentences for Commonwealth offences. It ensures that the court has the same discretions in respect of reduction for time served in custody and backdating as are provided for in s 44(2) of the Sentencing Act:
16E Commencement of sentences
(1)Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non‑parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence.
(2)Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non‑parole period fixed in respect of that sentence:
(a) may be reduced by the period that the person has been in custody for the offence; or
(b) is to commence on the day on which the person was taken into custody for the offence;
the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non‑parole period fixed in respect of that sentence.
(3)Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non‑parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned.
It was therefore within the judge’s discretion to apply the reduction of seven months to the sentences of imprisonment imposed for the Commonwealth offences. However, to apply that reduction to the sentence for the State offending had the result that the applicant received no real discount for the time spent in custody and on home detention bail. The applicant illustrated this result by use of a table to the following effect:
Current sentence Sentence if reduction applied to Commonwealth offending 13 July 2023 State sentence commences (with reduction of seven months)
Head: one year, five months
NPP: nine months13 July 2023 State sentence commences (without reduction of seven months)
Head: two years
NPP: one year, four months13 October 2023 Commonwealth sentence commences (without reduction of seven months)
Head: three years, nine months
NPP: two years13 October 2023 Commonwealth sentence commences (with reduction seven months)
Head: three years, two months
NPP: one year, five months13 April 2024 Eligible for parole re State offending 13 November 2024 Eligible for parole re State offending 13 March 2025 Eligible for parole re Commonwealth offending 13 October 2025 Eligible for parole re Commonwealth offending
Effectively, the reduction of seven months that was applied to the sentence for the State offending was entirely subsumed by the sentences (and non-parole period) for the Commonwealth offending. In other words, it would have made no difference to the time the applicant was required to spend in custody if the reduction had not been applied at all.
The application of a reduction on account of time spent in custody is a step in the sentencing process. The applicant described the effect of that step in this case as indicative of a failure to take into account the practical effect of the reduction in light of the structure of the sentence, or a failure to take into account adequately the time spent in custody for the Commonwealth offending.
Whichever characterisation is adopted, the complaint is of a failure to take into account a material consideration.[1] The better characterisation is the former of the two. The periods spent in custody and home detention bail were not, at the time, demarcated as between the State and Commonwealth offending. They were imposed by reference to the charges, without distinction. It makes more sense to view the complaint through the prism of taking into account the practical effect of the reduction in light of the structure of the sentence. It was only at sentencing that the applicant’s custody status was defined by reference to the different sources of legislative proscription.
[1] House v The King (1936) 55 CLR 499 at 505.
Viewed in this way, the complaint is established. Indeed, the respondent conceded that an error had occurred. The sentencing judge had manifestly intended to reduce by seven months the time the applicant was to spend in custody, on account of the periods of custody and home detention bail prior to 13 July 2023. By applying that reduction to the sentence for the State offences rather than the sentences for the Commonwealth offences, he inadvertently deprived the reduction he intended of any effect.
In this regard, the error is analogous to that which was found to have occurred in Burdon v The King:[2]
There remains a discretion under s 44(2) of the Sentencing Act in respect of the deduction to be given for time spent in custody referable to the offending albeit that there must be good reason to depart from giving full credit. In the present case, while the judge announced that full credit would be given for the period served in custody, it is not clear what effect that credit had on the sentence ultimately imposed. To this extent, the sentence is opaque. The applicant cannot know what effect, if any, the announced reduction had on the time he is to spend in custody.
[2] [2023] SASCA 71 at [21].
In the present case, the consequence is not that the applicant does not know what effect the announced credit had on the ultimate sentence imposed. He knows that it has had no effect. It is clear that the judge failed to have regard to a material consideration, being that this would be the consequence of applying the reduction to the sentence for the State offence. Leave to appeal should be granted and the appeal allowed.
The suggestion of a further error
The respondent suggested that a further error was apparent in the sentence imposed. This is that the judge not only applied a reduction of seven months pursuant to s 44(2)(a) of the Sentencing Act, but that he also backdated the sentence to commence on 13 July 2023, pursuant to s 44(2)(b)(i) of that Act. That is in circumstances where these respective discretions are presented as alternatives, by use of the word ‘or’ in the section. The respondent submitted that it ‘appeared to be impermissible’ to adopt a combination of both reduction for time spent in custody and backdating.
This submission can be addressed shortly. The options in ss 44(2)(a) and (b) are presented as alternatives. In R v Tsonis, to which the respondent referred, this Court said:[3]
When giving credit, the sentencing judge has a discretion whether to do so by reducing the sentence or backdating the sentence. However, at least when the time spent in custody is continuous, the preferable course is to backdate the sentence and non-parole period to the day on which the defendant was taken into custody, rather than to reduce their length.[4]
(Footnote in original)
[3] (2018) 131 SASR 416 at [70].
[4] R v Deng [2015] SASCFC 176 at [12]-[14].
In R v Deng,[5] the Court explained the preferability of giving credit by backdating rather than reduction, in that it promotes transparency of the record and of the sentencing remarks.
[5] [2015] SASCFC 176 at [12]-[14].
These authorities do not support the proposition that it was an error to apply both methods in the present case. For the following reasons, s 44(2) should be read at least as permitting a judge to utilise either sub-s (a) or (b) in respect of different periods of time spent in custody, depending on the timing and character of those periods.
The relevant words in the chapeau of s 44(2) are ‘time in custody’ and ‘the time already spent in custody’. The respondent’s submission necessarily assumed that these phrases were confined to the total period of time as an indivisible whole. However, there would appear to be no immediate reason why the phrase would not be read as referring to each separate period of time spent in custody in relation to the offence, should there be more than one. That is, where there is more than one relevant period of time spent in custody, the section can be read as responding to each period. That reading would be consistent with s 10(1) of the Legislation Interpretation Act 2021 (SA), which provides that every word in the singular will be construed as including the plural.
In circumstances where s 44(2) of the Sentencing Act is concerned routinely with situations where there may be various, separated periods of time when a person is in custody in respect of an offence for which they are subsequently convicted, there is good reason to construe the words ‘time … in custody’ as referring to a period or periods of time, such as may have existed.
The question then is whether the section limits the discretion of the judge to prevent them from treating separate periods of time in custody separately under sub-s (a) or (b). There does not seem to be any warrant for reading the section in that way. In the cases referred to above, this Court indicated that transparency favours backdating a sentence to when the person was taken into custody. It must also be accepted that in cases where there are separate, earlier periods spent in custody (as in the present case), there is no prohibition on setting an artificially backdated and notional starting date, incorporating those other periods as well.
However, setting an artificial, notional backdated starting point may often not serve the interests of transparency of the record or of the sentencing remarks. Transparency and logic would ordinarily be better served if separate, earlier periods of time were to be addressed separately by way of reduction under s 44(2)(a), rather than by manufacturing a notional starting date under s 44(2)(b). There may in some cases be good reason to backdate to a notional starting date, but there will often be good reason not to.
More importantly, the section does not, on its face, curtail the discretion such that the judge cannot choose to deploy either of sub-s (a) or (b) in respect of separate periods of time that have been spent in custody, where these periods of time are all in respect of the one offence or group of offences. Further, there is no contextual matter or consideration of purpose that would warrant such a restricted reading.
The applicant was taken into custody on 13 July 2023 and sentenced on 11 September 2023. That ‘time [spent] in custody’ was a separate and different period from the time spent in custody and on home detention bail subsequent to his arrest but before being taken into custody on 13 July 2023. The judge did not err in treating those periods of time separately under s 44(2)(a) and (b).
Even if the phrase in s 44(2), ‘the time already spent in custody’ should be construed as referring only to the total period of time spent in custody, we would not reach a different conclusion. The imperatives of transparency, discussed above, will on occasion nonetheless recommend separate approaches to different parts of that total period. The use of the word ‘or’ does not prevent such an approach. As Atkin LJ said in RF Brown & Co Ltd v T and J Harrison:[6]
… I disagree with the learned Judge in his view that the word “or” can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense, and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the Court to give the word a conjunctive use.
[6] (1927) 43 TLR 633 at 639.
To read the word ‘or’ in s 44(2) only disjunctively so as to as prohibit an approach that furthered the imperatives of transparency in sentencing would promote absurdity. Even if the words ‘the time already spent in custody’ did not permit distinguishing between separate periods of time spent in custody, such that the section was capable of applying differentially to those separate periods of time, we would read ‘or’ as including a conjunctive sense. That is, we would nonetheless read s 44(2) as permitting, where the sentencing context recommends it, both backdating and reducing the length of the sentence by reference to different parts of that total time spent in custody. Such a reading contributes to the underlying purpose of the section.[7]
[7] See further, Omerod v Blaslov (1989) 52 SSR 263 at 269-271 (O’Loughlin J); Pileggi v Australian Sports Drug Agency (2004) 138 FCR 107 at [36]-[37] (Kenny J).
Resentencing
As noted above, the applicant made no complaint about the periods of imprisonment set in respect of each offence, or about the structure of the sentence by which the periods were accumulated and made partially concurrent. Having regard to the factual matters set out above, we would not impose different sentences from those the sentencing judge imposed, other than to address how the reduction of seven months should be applied.
We resentence the applicant as follows:
The State offending
In respect of the offence of aggravated possession of child exploitation material contrary to s 63A of the CLCA, we set a starting point of three years and four months. We reduce that by 40 per cent, resulting in imprisonment for two years.
In respect of the offence of basic possession of child exploitation material contrary to s 63A of the CLCA, we set a starting point of two years. We reduce that by 40 per cent, resulting in imprisonment for one year, two months and 12 days.
We order that these sentences are to be served concurrently, the final head sentence for the State offences being two years. We fix a non-parole period of one year and four months.
The sentence is backdated to commence from 13 July 2023.
The Commonwealth offending
In respect of Count 1, using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Code, between 6 January 2017 and 1 December 2017, we set a starting point of three years and four months. We reduce that by 10 per cent, resulting in imprisonment for three years.
In respect of Count 2, using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Code, between 7 February 2019 and 8 March 2019, we set a starting point of two years and three months. We reduce that by 10 per cent, resulting in imprisonment for two years and nine days.
In respect of Count 4, using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Code, on 19 February 2019 and 5 March 2019, we set a starting point of 10 months. We reduce that by 10 per cent, resulting in imprisonment for nine months.
In respect of Count 3, using a carriage service to transmit child pornography material contrary to s 474.19(1)(a)(iii) of the Code, on 19 February 2019 and 5 March 2019. We set a starting point of one year and six months. We reduce that by 10 per cent, resulting in imprisonment for one year, four months and six days.
We order that nine months of the sentence for Count 2 are to be served cumulatively upon the sentence imposed for Count 1. This results in a period of imprisonment for three years and nine months. We order that two months of the sentence for Count 4 are to be served cumulatively upon the sentence imposed for Count 3. The result is a period of imprisonment of one year, six months and six days for Counts 3 and 4.
These two accumulated sentences are to be served wholly concurrently. This results in a sentence of imprisonment of three years and nine months for the four Commonwealth offences. We indicate that in respect of this sentence we would set a non-parole period of two years.
We then reduce the head sentence and non-parole period by seven months on account of the separate time spent in custody and on home detention bail. That results in a head sentence of three years and two months’ imprisonment, with a non-parole period of one year and five months.
Like the sentencing judge, we consider that the connection between the State offending and the Commonwealth offending justifies a substantial period of concurrency. On that basis, we order that the Commonwealth sentence is to commence from 13 October 2023.
Conclusion
For the sake of clarity, these orders on resentencing have the following effect:
·The effective total sentence in respect of the State offending is two years’ imprisonment, with a non-parole period of one year and four months. This is backdated to commence on 13 July 2023.
·The effective total sentence in respect of the Commonwealth offending is three years and two months’ imprisonment, with a non-parole period of one year and five months. This is backdated to commence on 13 October 2023.
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