Lord v The Queen

[2021] SASCA 122

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

LORD v THE QUEEN

[2021] SASCA 122

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice David)

20 October 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

After pleading guilty to five counts of communicating with the intent of making a child amenable to a sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA), and two counts of dishonest communication with a child contrary to s 139A(2) of the Criminal Law Consolidation Act 1935 (SA), the applicant was sentenced as a “serious repeat offender” to a term of 3 years and 7 months with a non-parole period of 2 years 10 months and 13 days. The applicant seeks permission to appeal against his sentence on the sole ground that the sentence is manifestly excessive.

Held, (the Court) refusing permission for leave to appeal and dismissing the appeal:

1.This application raises no issue of principle nor any reasonably arguable error in the approach of the sentencing Judge. The sentence was not manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) ss 63B(3)(b), 139A(2); Sentencing Act 2017 (SA) ss 53(1)(a), 54(1)(b), 71(4), 96(3)(ba), referred to.
R v Kohlhagen [2016] SASCFC 19; R v McIntyre [2020] SASCFC 101; R v Morse (1979) 23 SASR 98; R v Sumner & Sumner [2007] SASC 376; R v Williams [2015] SASCFC 66, considered.

LORD v THE QUEEN
[2021] SASCA 122

Court of Appeal - Criminal:  Livesey P and David JA

THE COURT:

Introduction

1. This is an application for permission to appeal against sentence on the sole ground that it is manifestly excessive. 

   The offences

2. On 5 August 2021 the applicant was sentenced for five counts of communicating with the intention of making a child amenable to sexual activity, contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA) and two counts of dishonest communication with a child, contrary to s 139A(2) of the Criminal Law Consolidation Act 1935 (SA). Each offence carries a maximum sentence of 10 years imprisonment.

   The sentence

3. Before the sentencing Judge, it was agreed that:

   1.The offence of communicating with the intention of making a child amenable to sexual activity was a “serious sexual offence” and, pursuant to s 96(3)(ba) of the Sentencing Act 2017 (SA) (the Act) there was no scope for a suspended sentence. 

   2.The applicant could not satisfy the special reasons test provided for under s 71(4) of the Act, with the result that he was ineligible for a home detention order.

   3.The five counts of communicating with the intention of making a child amenable to sexual activity were committed on separate occasions and, accordingly, the applicant fell to be sentenced as a “serious repeat offender” and any non-parole period fixed had to be four-fifths of the head sentence pursuant to s 53(1)(a) and s 54(1)(b) of the Act.

4. For the five counts of communicating with the intention of making a child amenable to sexual activity, the applicant was sentenced to three years imprisonment, reduced from four years on account of his pleas of guilty.  For the two counts of dishonest communication, the applicant was sentenced to 13 months imprisonment, reduced from 15 months on account of his pleas of guilty. 

5. The sentencing Judge ordered that the sentences be served partially concurrently, with the result that she fixed a head sentence of three years and seven months imprisonment.  She also considered the issue of totality, so as to ensure that the head sentence was not crushing.  The sentencing Judge fixed a non-parole period of two years, 10 months and 13 days, being the mandatory minimum four fifths of the head sentence. 

   The offender

6. At the time of sentence, the applicant was 42 years.  Notwithstanding the applicant’s contrition, which was not questioned, the sentencing Judge regarded the offending as serious over the course of a 12-month period. 

   The offending

7. In this case the offending concerned undercover police operatives whom the applicant believed were 13 or 14-year-old girls.  Between 7 June and 21 July 2019, the applicant’s communications sought naked photographs and encouraged masturbation by the correspondent (count 3).  Between 31 August and 1 October 2019, the communications continued over Snapchat with the applicant suggesting a meeting and sexual activity in his car.  The applicant sought sexual images and directed the correspondent to pornographic websites; the applicant enquired whether this correspondent had touched herself or ever experienced an orgasm (count 4). 

8. Between 30 September and 1 November 2019, the applicant sent sexual messages, enquired whether this correspondent had felt her breasts and would touch his penis; he continued to request sexual photographs (count 5). 

9. Between 29 February and 1 April 2020, the applicant engaged in sexual communications with another correspondent, encouraging her to masturbate and play with her breasts.  He repeatedly sought photographs and suggested that she watch adult pornography.  He sent two pornographic videos.  The first was of an adult female masturbating with a dildo and the second was of an adult female masturbating an adult male to ejaculation.  The applicant discussed the appearance of his penis and suggested a video chat so that he could show the difference between his and the one depicted in the video (count 6). 

10. Between 31 March and 1 May 2020, the applicant sent more sexual messages, this time using WhatsApp, requesting a video chat so that he could instruct his correspondent how to masturbate on video.  The applicant sent images of a young male, suggesting that they were images of him when in fact they were images of a boyfriend of the applicant’s daughter (counts 2 and 7). 

    The applicant’s arguments

11. The applicant relies upon R v Williams, where the appellant was sentenced to two counts of procuring against one victim and another count against a second victim, where the offences were representative of a course of conduct. The appellant was 20 years at the time he was sentenced to three years imprisonment with a non-parole period of 16 months. The Court of Criminal Appeal found that the sentence was manifestly excessive.[1] It is emphasised that that the non-parole period in that case was less than the non-parole period fixed in this case.

    [1]     R v Williams [2015] SASCFC 66, [27].

12. The applicant also relies upon R v McIntyre, where the prosecution successfully appealed against a sentence for one count of communicating with a prurient purpose, and one count of unlawful sexual intercourse with a person under the age of 14.[2]   The victim became pregnant and underwent a termination.  The head sentence was increased to five years and three months imprisonment, with a non-parole period fixed at three years and six months.  It is emphasised that that is only eight months longer than the non-parole period fixed in this case.

    [2]     R v McIntyre [2020] SASCFC 101.

13. Finally, the applicant relies on R v Kohlhagen, where the appellant pleaded guilty to making a child amenable to sexual activity, aggravated indecent assault and unlawful sexual intercourse, all with a person under the age of 14 years.[3]   After a 20 per cent reduction for the pleas of guilty, the appellant was sentenced to four years, eight months and 24 days and a non-parole period was fixed at two years, five months and 24 days. On appeal, the Court of Criminal Appeal, by a majority, reduced the sentence to three years and 10 months and fixed a non-parole period of 23 months.  It is emphasised that, notwithstanding that the appellant had sexual intercourse with the underage victim, the non-parole period was 11 months shorter than the present applicant’s non-parole period.

    [3]     R v Kohlhagen [2016] SASCFC 19.

    Conclusions: not manifestly excessive

14. The comparisons made with other cases tended to focus upon the non-parole periods, overlooking the effect of the serious repeat offender provisions.  The head sentences in those other cases were clearly higher and there are obvious difficulties when comparing cases which are not strictly alike, involving different circumstances.[4] 

    [4]     R v Sumner & Sumner [2007] SASC 376, [76] and R v Kohlhagen [2016] SASCFC 19, [74].

15. Whilst the sentence might be thought high, the applicant raises no question of principle nor any reasonably arguable contention that the sentence is manifestly excessive.[5] The sentence was not manifestly excessive.

    [5]     R v Morse (1979) 23 SASR 98.

16. Permission to appeal is refused and the appeal is dismissed.