Moss v The Queen - [2021] SASCA 101

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MOSS v THE QUEEN
[2021] SASCA 101
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice S David)
22 September 2021
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
The applicant pleaded guilty to three 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). The offending the subject of the counts occurred on 31 October, 11 and 13 November 2019. The applicant seeks permission to appeal against sentence on the sole ground that the sentencing Judge erred by determining that the applicant was a “serious repeat offender” within the meaning of s 53(1)(a) of the Sentencing Act 2017 (SA) (the Act) as there was total circumstantial unity in his offending, such that the offences could not be regarded as occurring on “separate occasions” as required by the Act.
Held (per the Court), refusing permission to appeal:
1. The offending the subject of each count did not occur within one, closed period of time. The offending the subject of each count was separated by a period of at least one day, over the course of a month. In these circumstances, it cannot be said that the offending did not occur on separate occasions as required by s 53(1)(b) of the Act.
2. This application raises no issue of principle nor any arguable error in the approach of the sentencing Judge.
Sentencing Act 2017 (SA) s 53(1)(a), s 96, referred to.
KRM v The Queen (2001) 206 CLR 221; Tognolini v The Queen (2011) 32 VR 104; R v Culley (2019) 134 SASR 92; R v Harradine (2019) 134 SASR 68; Moran v The Queen (2020) 136 SASR 504, considered.

MOSS v THE QUEEN
[2021] SASCA 101
Court of Appeal – Criminal: Livesey P and David JA
THE COURT (ex tempore):

This is an application for permission to appeal against sentence.
The applicant pleaded guilty to three 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). That offence carries a maximum penalty of 10 years imprisonment.
On 9 July 2021, the sentencing Judge imposed a head sentence of one year, two months and 13 days, with a non-parole period of 11 months and 17 days, being four-fifths of the head sentence.
Permission to appeal is sought on the sole ground that the sentencing Judge erred by determining that the applicant was a “serious repeat offender” within the meaning of s 53(1)(a) of the Sentencing Act 2017 (SA) (the Act).
In the course of her sentencing remarks,…

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 Moss v The Queen

Details

AGLC: Moss v The Queen [2021] SASCA 101
Case: [2021] SASCA 101
Decision Date: 22 September 2021

CaseChat Overview and Summary

In *Moss v The Queen*, the applicant sought leave to appeal against a sentence imposed by the sentencing Judge in the Supreme Court of South Australia. The applicant had pleaded guilty to three counts of communicating with the intention of making a child amenable to sexual activity, contrary to section 63B(3)(b) of the *Criminal Law Consolidation Act 1935* (SA). The offending occurred on 31 October, 11 and 13 November 2019.

The sole ground of appeal argued was that the sentencing Judge erred in determining the applicant was a "serious repeat offender" under section 53(1)(a) of the *Sentencing Act 2017* (SA). This determination hinged on whether the offences occurred on "separate occasions" as required by the Act, with the applicant contending that the "total circumstantial unity" of his offending meant they did not.

The Court refused permission to appeal, holding that the offending did not occur within a single, closed period. The offences were separated by at least one day and spanned over a month, thus constituting separate occasions as contemplated by section 53(1)(b) of the *Sentencing Act 2017* (SA). Consequently, the Court found no issue of principle or arguable error in the sentencing Judge's approach.

Orders

Orders of the court

The applicant pleaded guilty to three 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). The offending the subject of the counts occurred on 31 October, 11 and 13 November 2019. The applicant seeks permission to appeal against sentence on the sole ground that the sentencing Judge erred by determining that the applicant was a “serious repeat offender” within the meaning of s 53(1)(a) of the Sentencing Act 2017 (SA) (the Act) as there was total circumstantial unity in his offending, such that the offences could not be regarded as occurring on “separate occasions” as required by the Act.

Held (per the Court), refusing permission to appeal:

1. The offending the subject of each count did not occur within one, closed period of time. The offending the subject of each count was separated by a period of at least one day, over the course of a month. In these circumstances, it cannot be said that the offending did not occur on separate occasions as required by s 53(1)(b) of the Act.

2. This application raises no issue of principle nor any arguable error in the approach of the sentencing Judge.

Background

Background to the litigation

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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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