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

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

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 Lord v The Queen

Details

AGLC: Lord v The Queen [2021] SASCA 122
Case: [2021] SASCA 122
Decision Date: 20 October 2021

CaseChat Overview and Summary

The applicant, Lord, sought leave to appeal against a sentence imposed by the sentencing judge. The appeal concerned the severity of the sentence, with the applicant arguing it was manifestly excessive.

The central legal issue before the Court was whether the sentencing judge erred in imposing the sentence, specifically whether it was demonstrably too severe given the circumstances of the offence and the applicant's history. The Court was required to consider whether the sentence was outside the bounds of what a reasonable sentencing judge could impose.

In its reasoning, the Court noted that the applicant's comparisons with other cases, such as *R v Kohlhagen*, were unpersuasive. The Court highlighted that such comparisons often focused on non-parole periods while overlooking the impact of serious repeat offender provisions. Furthermore, the Court observed that direct comparisons between cases are difficult due to differing circumstances. Ultimately, the Court concluded that the applicant had not raised any issue of principle or any reasonably arguable contention that the sentence was manifestly excessive.

Accordingly, the Court refused permission for leave to appeal and dismissed the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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