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 122Court 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…
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- AGLC
- Lord v The Queen [2021] SASCA 122
- Case
- [2021] SASCA 122
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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