Lawrence (a pseudonym) v The King - [2024] SASCA 145

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
LAWRENCE (A PSEUDONYM) v THE KING
[2024] SASCA 145
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice David and the Honourable Auxiliary Justice Bond)
19 December 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
The applicant was convicted after pleading guilty to 29 offences involving the sexual abuse of children and the possession and production of child exploitation material. He was sentenced about a year later to 22 years’ imprisonment with a non-parole period of 17 years seven months and nine days. At the time of sentencing, he was aged 34.
The applicant seeks permission to appeal against the sentence on two proposed grounds: (1) the sentencing judge erred by imposing a manifestly excessive sentence; and (2) the sentencing judge sentenced on the erroneous basis that the maximum penalty for one of the 29 offences for which the applicant was sentenced was imprisonment for life when in fact the maximum penalty was 10 years’ imprisonment.
The offending in relation to Ground 2 was offending against the applicant’s ten-year-old niece. The information in respect of which the applicant had been arraigned and in respect of which he had pleaded guilty had identified the relevant offence as unlawful sexual intercourse with a person under the age of 17 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), which at that time carried a maximum penalty of 10 years’ imprisonment. The particulars for this charge stated that the unlawful sexual intercourse was with the applicant’s niece, a person aged 10 years.
In relation to this offence, there was no dispute as to the age of the victim or the conduct involved. At all material times, the parties and the sentencing judge proceeded on an understanding that the relevant offence was an offence of unlawful sexual intercourse with a person under 14 years, contrary to s 49(1) of the CLCA, which carried a maximum penalty of life imprisonment.
The respondent has applied to this Court to amend the information the subject of the plea to correct the irregularity and reflect the appropriate offence provision. The applicant opposed the application but agreed that, if the application to amend succeeded, he would only press the first proposed appeal ground.
Held, per the Court, refusing permission to appeal:
1.In circumstances where the information contained a defect of substance and it is not arguable that the defendant has been substantially prejudiced by that defect, it is appropriate that the respondent’s application to amend the information be allowed; and
2.In light of the seriousness of the offending and the sentencing judge’s considerable reductions for concurrency, the sentence imposed cannot be said to have been manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) ss 49(1), 49(3), 50(1), 56, 63(1), 63A; Criminal…

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 Lawrence (a pseudonym) v The King

Details

AGLC: Lawrence (a pseudonym) v The King [2024] SASCA 145
Case: [2024] SASCA 145
Decision Date: 19 December 2024

CaseChat Overview and Summary

The applicant, Lawrence (a pseudonym), appealed against a sentence imposed by a sentencing judge for offences relating to the sexual abuse of children and the maintenance of a sexual relationship with a child. The appeal was heard by the Supreme Court of South Australia, comprising Kourakis CJ, David J, and Bond AJ.

The primary legal issue before the Full Court was whether the sentencing judge erred in imposing a sentence that was manifestly excessive. The applicant’s argument focused not on the individual notional sentences for each offence, but rather on the way the sentencing judge aggregated these notional sentences and applied principles of totality and proportionality to arrive at the final single sentence.

The Full Court considered the well-established principles governing appeals against sentence, particularly the test for manifest excess. The sentencing judge had calculated notional sentences totalling 28 years, applying concurrency where appropriate, but ultimately imposed a single sentence after further reducing it to account for totality and proportionality. The judge emphasised the seriousness of the offending, the significant impact on the victims, the need for denunciation and deterrence, and the applicant's prior offending. While acknowledging the applicant's apparent remorse and genuine apology, the judge stressed the importance of protecting children and deterring others from creating and disseminating child exploitation material. The Full Court found no error in the sentencing judge's approach to totality and proportionality, concluding that the sentence was not manifestly excessive.

Consequently, the applicant's application for permission to appeal against his sentence was refused. The Court also allowed an amendment to count 3 of the information, correcting the age of the victim and the relevant section of the Criminal Law Consolidation Act 1935.

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

The applicant must be refused permission to appeal against his sentence.Conclusion The following orders must be made:(a)The respondent’s application to amend is allowed;(b)Count 3 of the information relating to DCCRM-23-008346/MCCRM-22-017248, dated 20 December 2022, is amended–(i)In the “Offence Details”: by deleting the words “Under 17 years” and replacing them with the words “under 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act, 1935”; and(ii)In the “Particulars”: by deleting the words “Section 49(3) of the Criminal Law Consolidation Act, 1935”.(c)The applicant is refused permission to appeal against sentence.

Ratio Decidendi

Legal Principle Established

In explaining the reduction last mentioned, the sentencing judge remarked:I must now consider what is an appropriate single sentence for your offending. There is further concurrency, although the offending regarding TF occurred several years before the offending against LT and ST. The offending against TF was over two days. The offending against ST, and the offending against LT was for a much more prolonged period, and each part of the Child Exploitation Material that was produced was of a different scene involving that abuse. However, I must take into account it was the same type of offending performed regularly. I have set out all my notional sentences in annexure C to this sentence. They total 28 years in prison. In sentencing you I must consider the principles of totality and your prospects of rehabilitation. The sentence should not be crushing.However, when considered as a whole, there is no doubt that your offending was very serious. It has had a significant impact upon your victims. And you have heard this in detail from their parents in the Victim Impact Statements.For your own selfish reasons, you were prepared to place at risk the wellbeing of their children and their future by the way you treated them. Clearly the need for denunciation and personal deterrence is significant, particularly given your previous offending, and the fact that [the 2009 sentencing judge], provided some leniency to you.I accept that you now understand the gravity of your offending and its consequences. You read a tearful apology to your victims and their families in court. This appeared genuine. That you were very upset at the consequences of what had occurred as a result of your offending. But the consequences for you are very serious. Whilst there is no evidence that you disseminated any of the child exploitation material, others must be deterred from making this material that can be sent to others. It puts all children at risk. I must impose a sentence that deters you and others, and keeps children safe in our community.I have set five notional s.26 sentences. I am now going to fix one sentence for your whole offending. Although I have already applied concurrency in those five sentences some further reduction is warranted taking into account principles of totality and proportionality. My final sentence must reflect the serious nature of your offending, your own personal circumstances and background and the purposes of sentencing that I have already set out.Consideration of the first appeal ground The applicant contended that the sentencing judge erred by imposing a sentence which was manifestly excessive. The principles governing the resolution of such an appeal ground are well-known. They were recently and sufficiently for present purposes summarised in Hackett v The Queen [2021] SASCA 32, [8] (Kelly P, Lovell and Livesey JJA). In the present case, although the applicant’s written submissions seemed to develop an argument that the starting point used to identify the various individual notional sentences were themselves erroneously excessive, in oral submissions the applicant’s counsel confirmed that he did not seek to suggest that there was any error in the individual notional sentences. His submission was that the individual notional sentences were severe, but not so severe that they could themselves have been regarded as manifestly excessive. His contention was the relatively narrow proposition that the sentencing judge must be taken to have erred in the way in which she took account of each of the subcomponents of the eventual single sentence and put them together in regard to totality and overall proportion.