KMC v Director of Public Prosecutions (SA)

The High Court of Australia considered an appeal by KMC against a sentence imposed by a sentencing judge for the offence of persistent sexual exploitation of a child, contrary to section 50(1) of the *Criminal Law Consolidation Act 1935* (SA). The appeal concerned the sentencing process following the High Court's decision in *Chiro v The Queen* (2017) 260 CLR 425, which mandated that a sentencing judge must either ask the jury to identify the specific underlying acts of sexual exploitation found proved or sentence on the basis most favourable to the offender. In this instance, it was unclear which alleged acts the jury had found proved beyond reasonable doubt, and the applicant argued he was not sentenced on the most favourable basis.

The central legal issues before the High Court were whether section 9(1) of the *Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017* (SA) (the Amending Act) applied to validate the sentence, and whether the sentencing remarks adequately identified the acts of sexual exploitation determined by the sentencing court to have been proved beyond reasonable doubt. The applicant contended that the sentencing judge had not followed the principles established in *Chiro*, as the jury's findings were not clearly identified, and the sentence was not based on the facts most favourable to him.

The High Court reasoned that the applicant was not sentenced on the basis of the facts most favourable to him, which was a requirement of the law as stated in *Chiro*. Consequently, the sentencing was contrary to legal requirements. The Court found that section 9(1) of the Amending Act was not engaged in this case, meaning the provision did not operate to cure the sentencing error. Therefore, questions regarding the constitutional validity of that provision did not arise. The Court granted an extension of time for the permission to appeal and allowed the appeal, setting aside the sentence imposed and remitting the matter to the sentencing judge for re-sentencing according to law.