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, the sentencing Judge explained that the three counts represented three separate occasions and “accordingly, you are a serious repeat offender such that any sentence of imprisonment must carry a non‑parole period of four fifths of the sentence”.
The offending commenced on 13 October 2019 when the applicant initiated a conversation with a covert police officer, posing as a 13-year-old female, in a talk group on an online social media application. The applicant was then 26 years of age. During that conversation, the applicant referred to the size of his penis and how the female would not be disappointed. There was further contact with the covert police officer whilst the applicant was overseas on holiday during the latter half of October 2019.
On 30 October 2019, the applicant again communicated with the covert police officer, who was ostensibly at school. The applicant told her that he liked naughty girls and, when the topic of the girl’s mother was raised, the applicant said words to the effect that they would try and keep their communication secret for as long as possible. He added that if she didn’t say anything, the applicant would give her everything she ever wanted. The applicant told the officer that he wanted to meet her “so badly”.
On 31 October 2019, the applicant sent another message to the covert police officer asking if she was at school. When she said that she was, the applicant asked her to leave school at lunch time. He said that his house was empty. He discussed various sexual activities, indicating that he wanted to engage in them with her. The applicant said that he could teach her and that he would enjoy watching her practice. The applicant told the covert police officer that he was at Payneham, not very far away. He called her beautiful and asked when she was thinking of meeting with him. This communication was the subject of count 2.
On 11 November 2019, the applicant again contacted the covert police officer asking if she was free after school. He suggested that he collect her from school. When the covert police officer asked what the applicant wanted, he described various sexual activities and suggested that she tell her mother that she was going to a friend’s place. He asked the covert police officer when her mother would get home and eventually suggested making “better” plans for later. This communication was the subject of count 3.
On 13 November 2019, the applicant asked whether there was a chance of meeting after school. When the covert police officer replied that she could not meet that night but was available the following day, the applicant replied with words to the effect that “tomorrow could work”. Again, the applicant made various sexualised comments and asked for a photograph to be sent. He asked what the covert police officer’s school uniform looked like. The applicant suggested that they meet after school down the road or around the corner. Plans were made about leaving school early the following morning, to which the applicant said that this was “perfect” and he would leave the roller door of the house in Payneham up so that she could walk through to the granny flat. The applicant said that he would provide the number and asked about her wearing a summer dress. This communication was the subject of count 4.
Just after 9.00 am on the morning of 14 November 2019, police attended the address in Payneham but there was no-one there. Later that morning, they attended the address of the applicant’s girlfriend and found the applicant at the rear of the property. He was arrested and interviewed. The applicant admitted to police that he was not feeling okay about the situation which was why he had turned his phone off. He accepted that the conversations were “not good”, that they were sexualised and that they had gone on for weeks. The applicant described this as a mistake and explained that he had a problem with drug use and was “not in a good place mentally”. He suggested that he did not think the plan to meet was “real” or that it was “actually going to happen”.
At the time of sentence, the applicant had just commenced a new relationship and his partner remained supportive at the time of sentencing.
At the time he was sentenced, the applicant was in full-time employment and his counsel urged that he be considered for a good behaviour bond. However, the sentencing Judge regarded the imposition of a good behaviour bond as “difficult”. She was concerned whether the circumstances before her could appropriately be dealt with without the imposition of a sentence of imprisonment. She determined that she must give paramount consideration to deterrence and punishment. She described the offending as serious and motivated by sexual gratification involving paedophilic proclivities which the applicant appeared not to recognise.
Nonetheless, the sentencing Judge regarded the applicant as remorseful and observed that he recognised the damage caused and accepted responsibility for his offending. Ultimately, however, the sentencing Judge found that the circumstances did not allow for anything other than the imposition of a sentence of imprisonment.
The applicant accepts that, before the sentencing Judge, it was conceded that he was a serious repeat offender within the meaning of s 53(1)(a) of the Act.
Speaking generally, the effect of s 53 is that an offender is taken to be a “serious repeat offender” if that offender has committed the requisite number of qualifying offences, which may include the offences for which the offender is being sentenced, and the offender has been convicted of qualifying offences committed on separate occasions.
A “serious offence” is defined by s 52(b)(iv) to be an offence contrary to Part 3 of the Criminal Law Consolidation Act 1935 (SA) where the maximum penalty prescribed is, or includes, imprisonment for at least five years. The offences in this case were each contrary to s 63B which may be found in Part 3 of the Criminal Law Consolidation Act 1935 (SA) and the penalty for the basic offence is imprisonment for 10 years. It follows that an offence under s 63B(3)(b) is a “serious offence” as defined for the purposes of s 52(b)(iv) of the Act.
As for the requisite number of offences, s 53(1) provides that a person is taken to be a serious repeat offender if that person has committed and been convicted of at least three “serious offences” committed on separate occasions or at least two “serious sexual offences” committed on separate occasions (whether or not they are the same offence on each occasion).
In this case, the three offences are three “serious offences”, as defined. Under s 52 of the Act a “serious sexual offence” includes an offence under s 63B of the Criminal Law Consolidation Act 1935 (SA), provided the victim was under the age of 14 years. As has been outlined, however, the applicant was not charged with nor convicted of an offence under s 63B where the victim was in fact under the age of 14 years.
Having said that, under s 96(3)(ba) of the Act, a Court may not suspend a sentence of imprisonment where the offender is sentenced as an adult for a “serious sexual offence”. For the purposes of s 96(3) of the Act, a “serious sexual offence” is defined differently by s 96(9) so as to include an offence under s 63B of the Criminal Law Consolidation Act 1935 (SA).
Accordingly, insofar as the sentencing Judge found that the offences were “serious sexual offences” which precluded suspension, that accorded with the terms of s 96 of the Act and no complaint is now made against the finding that it was not open to suspend the sentence of imprisonment.
Rather, as mentioned, the sole complaint is against the finding that the applicant was a “serious repeat offender” and thereby subject to a mandatory minimum non-parole period fixed at four fifths of the head sentence.
Ultimately, the applicant contends that the offending was not committed on separate occasions within the meaning of s 53(1)(a) of the Act. Given the conduct on 31 October, 11 and 13 November, it is difficult to see why these counts did not concern offending committed on separate occasions.[1] In R v Harradine, Hughes J explained that offending which may be described as a course of conduct may not necessarily determine whether the offending occurred on separate occasions:[2]
A course of conduct may describe one or many occasions. Where a person has committed multiple offences in succession, continuity of intent may provide the circumstance that leads to the course of conduct being characterised as a single occasion. This is more likely to be the case where the multiple offences are different in nature. But where there are multiple offences of the same kind, such as sexual offending against the same victim, or drug dealing over the course of a period of time, continuity of intent may not establish that the multiple offences constitute a single episode. It will always be a matter to be determined by reference to all of the circumstances, though not a matter of discretion. That a course of conduct may describe several occasions was observed by Parker J in O’Dea v Commissioner of Police.[3] The Court was required to determine whether a person had committed certain offences upon a sufficient number of occasions to enliven classification as a “registerable repeat offender” for the purposes of the Child Sex Offenders Registration Act 2006 (SA). His Honour said:[4]
The reference by the sentencing judge to a course of conduct simply meant that he had repeatedly committed the same type of offence with the same victim after he had groomed her. It did not mean that he had not committed the offences on separate occasions as that concept was explained by the High Court in R v White. He is clearly a “registrable repeat offender” under either limb of the definition in s 4(1) of the Act on the basis that he committed a relevant offence on the requisite number of separate occasions.
[1]     KRM v The Queen (2001) 206 CLR 221, [16]-[18] (McHugh J); Tognolini v The Queen (2011) 32 VR 104, [17]-[23] (Maxwell P, Buchanan and Redlich JJA); R v Culley (2019) 134 SASR 92; R v Harradine (2019) 134 SASR 68; Moran v The Queen (2020) 136 SASR 504.
[2]     R v Harradine (2019) 134 SASR 68, [89] (Hughes J, with whom Peek J agreed).
[3]     O’Dea v Commissioner of Police (2016) 125 SASR 159.
[4]     O’Dea v Commissioner of Police (2016) 125 SASR 159, [19].
The applicant contends that there was total circumstantial unity and his offending was characterised by continuity of thought and action which was unwavering. The applicant also submits that the question then is whether these offences were sufficiently separated in time to be regarded as “separate occasions” during the month of the offending so as to outweigh the circumstantial unity.
However, in contrast to cases such as Tognolini v The Queen and R v Harradine,[5] this offending did not occur within one, closed period of time.[6] Though the circumstances of the communications were similar, the target of the communications was the same and the applicant’s intent may well have been unwavering, the offending the subject of each count over a course of one month was separated by at least a period of a day and the content of the communications became more insistent and serious. It cannot be said that this offending did not occur on separate occasions, as required by s 53(1)(a) of the Act.
[5] Tognolini v The Queen (2011) 32 VR 104; R v Harradine (2019) 134 SASR 68, [48] (Hughes J, with whom Peek J agreed).
[6] Tognolini v The Queen (2011) 32 VR 104, [17]-[23] (Maxwell P, Buchanan and Redlich JJA).
In our view, this application raises no issue of principle nor any arguable error in the approach of the sentencing Judge.
Permission to appeal is refused and the appeal is dismissed.