Gonis v The King - [2024] SASCA 42

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,…

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 Gonis v The King

Details

AGLC: Gonis v The King [2024] SASCA 42
Case: [2024] SASCA 42
Decision Date: 4 April 2024

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, Gonis, by the Supreme Court of South Australia. The dispute revolved around the appropriate sentence to be imposed for both State and Commonwealth offences, specifically relating to child exploitation material. The appeal was heard by Doyle, Bleby and David JJ.

The central legal issue before the Full Court was whether the Commonwealth sentence should be ordered to commence concurrently with, or consecutively to, the sentence imposed for the State offending. This required the Court to consider the interplay between the two sentences and the overall period of imprisonment the appellant would serve.

The Court determined that the connection between the State and Commonwealth offending warranted a substantial period of concurrency. Applying this principle, the Court ordered that the Commonwealth sentence was to commence from 13 October 2023. This resulted in an effective total sentence of two years' imprisonment for the State offending, with a non-parole period of one year and four months, backdated to 13 July 2023. For the Commonwealth offending, the effective total sentence was three years and two months' imprisonment, with a non-parole period of one year and five months, backdated to 13 October 2023.

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

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.

Ratio Decidendi

Legal Principle Established

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