KS v Police - [2021] SASCA 12

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KS v POLICE
[2021] SASCA 12
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)
25 March 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
The appellant, a youth, pleaded guilty to 16 criminal charges across two files. The offending included sexual offending and drug offending; the latter offending was committed whilst on bail for the former offending. Many of the charges were major indictable offences. A Magistrate of the Youth Court imposed one sentence for all the offending of 12 months detention partially suspended upon entry into a 12 month obligation. Convictions were recorded on all charges as the Magistrate was not satisfied that special reasons were established not to record convictions.
The appellant appealed on the ground that the Magistrate failed to apply the relevant statutory discounts for his guilty pleas and challenged the recording of convictions on the basis that special reasons had been made out. The respondent conceded a process error had been made by the Magistrate regarding the available discounts but maintained that the sentence was appropriate in all the circumstances. The respondent further maintained that special reasons had not been made out and that the recording of convictions on all counts was appropriate.
Held, per Lovell JA (Kelly P and Bleby JA agreeing), dismissing the appeal:
1. The sentence is appropriate in all the circumstances.
2. The Magistrate did not err in imposing convictions on all counts.
Bail Act 1985 (SA) s 17; Controlled Substances Act 1984 (SA) ss 18, 32, 33I, 34; Criminal Law Consolidation Act 1935 (SA) ss 49, 63, 63A, 63B; Sentencing Act 2017 (SA) s 26, 28, 39; Young Offenders Act 1993 (SA) ss 3, 17, 21; Youth Court Act 1993 (SA) s 22(2), referred to.
B, JL v Police [2017] SASC 9; R v Lambert [2009] SASC 307; R v Police [2002] SASC 403; R v Yousef (2005) 155 A Crim R 134; S, JC v Police (2007) 96 SASR 432; W, SS v Police [2014] SASFC 64, considered.

KS v POLICE
[2021] SASCA 12

Court of Appeal – Criminal: Kelly P, Lovell and Bleby JJA

KELLY P: I would dismiss the appeal for the reasons given by Lovell JA.
LOVELL JA:
Overview
The appellant, a youth, pleaded guilty in the Youth Court to 16 criminal charges. The charges can be described broadly as falling into two categories – “sexual offending” and “drugs/firearm offending”. The two complainants of the sexual offending were under the age of 16 and were, at some stage, in a relationship with the appellant. The drugs/firearm offending was committed whilst the appellant was on bail for the sexual offending.
A Magistrate of the Youth Court imposed one sentence for all the offending of 12 months detention. That time was reduced by 3 months…

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 KS v Police

Details

AGLC: KS v Police [2021] SASCA 12
Case: [2021] SASCA 12
Decision Date: 25 March 2021

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, KS, who was charged with 16 offences across two court files. These offences broadly fell into two categories: sexual offending and drugs/firearm offending. The sexual offending involved the appellant, who was 17 at the time, engaging in sexual intercourse with a 15-year-old girl, E, and facilitating her involvement in online sexual services using explicit images. The appellant also disseminated child exploitation material depicting E and a second victim, A, who was 16 at the time, by posting explicit images of A online for payment without her consent. The drugs/firearm offending involved the appellant posting an image of a firearm on social media, which led to police intervention.

The legal issues before the court were whether the sentence imposed was appropriate in all the circumstances and whether the Magistrate erred in recording convictions on all counts. The appellant was appealing against the sentence and the imposition of convictions.

The court, per Lovell JA (with Kelly P and Bleby JA agreeing), dismissed the appeal. The reasoning focused on the gravity of the offending, particularly the sexual offences involving minors and the dissemination of child exploitation material. The court found that the Magistrate had not erred in imposing convictions on all counts, considering the nature and extent of the appellant's criminal conduct. The court concluded that the sentence was appropriate given the circumstances of the case.

Orders

Orders of the court

Held, per Lovell JA (Kelly P and Bleby JA agreeing), dismissing the appeal:

1. The sentence is appropriate in all the circumstances.

2. The Magistrate did not err in imposing convictions on all counts.

Background

Background to the litigation

I would dismiss the appeal. My reasons follow.BackgroundThe offending The appellant was charged with a total of 16 offences across two court files MCPAD-19-4895 and ACC-20-705. The two files may be broadly categorised as the “sexual offending” and the “drugs/firearm offending”, respectively. I set out the factual basis giving rise to each series of offending and the charges laid which are subject to this appeal. The sexual offending Between the end of July 2019 and 20 August 2019, the appellant was in a relationship with E. The appellant described the relationship as being loving and intimate. On two separate occasions, once at the appellant’s home and once at E’s home, the appellant and E engaged in sexual intercourse. The appellant was said to be intoxicated on both occasions. At the time, the appellant was 17 years old; E was 15 years old. These two occasions of sexual intercourse gave rise to Counts 4 and 5 on the first file. During the course of their relationship, the appellant convinced E to send him images of herself in her underwear with her breasts and vagina exposed. The appellant and E discussed how she could make money by offering sexual services online, using the images to create advertisements, based upon the appellant’s experience of doing so. It was submitted that E owed the appellant a drug debt and that he was unwilling to lend her any further money upon her request; posting advertisements for sexual services was the appellant’s idea to help E raise funds. With her consent, the appellant posted the images on a website called “Locanto”, offering her sexual services for payment. This conduct formed the basis of Counts 3, and 9 to 12 on the first file. An unknown male responded to the advertisement posted by the appellant for the sexual services of E. The appellant arranged a meeting for E and the unknown male to take place at 3pm on 20 August 2019 in a park. The appellant advised E of the planned meeting, and E agreed to divide the proceeds that would be obtained equally. This conduct gave rise to Count 1 on the first file. On 20 August 2019, the appellant posted an image of a firearm on social media. The police became aware of the image and attended the appellant’s school to investigate. During their investigations, the police seized the appellant’s phone and identified messages between the appellant and E; E had texted the appellant that she was on her way to the park to meet the unknown male, but was frightened, and did not want to go through with the plan. The police attended the park where E was to meet the unknown male and intercepted E before any acts took place. The next day, police showed E the images located on the appellant’s phone and E confirmed the images were of her; possession of these images gave rise to Count 2 on the first file. Further examination of the appellant’s phone led police to identify that the appellant had disseminated child exploitation material depicting not only E but a second victim, A. The appellant and A had previously been in a relationship. During that relationship, explicit images of A had been taken; some of the images had been taken by the appellant, and others taken by A and sent to the appellant. A was 16 years old at the time. The appellant posted some of those images on the Locanto website, advertising A’s sexual services in return for payment. This conduct gave rise to Counts 7 and 8. Unlike E, A was unaware and did not consent to the appellant posting the images on Locanto. Approximately seven pornographic files were located on the appellant’s phone.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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