R v ARTHUR - [2019] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ARTHUR
[2019] SASCFC 4
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
16 January 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
Appeal against sentence.
The appellant pleaded guilty to four counts of producing child pornography and one count of aggravated making a communication with the intention of procuring a child under the proscribed age to engage in or submit to sexual activity. The offences were committed between 28 February 2015 and 28 October 2015.
The four counts of producing child pornography related to text message exchanges between the appellant and a female co-accused. For each count, the Judge imposed a sentence of three months and two weeks, to be served concurrently. The appellant does not challenge the sentences imposed with respect to these counts on appeal.
The offence of making a communication with the intention of procuring a child was comprised of a text message conversation between the appellant and the female co-accused, in which the appellant sought to procure her two year old daughter to be made available to an unidentified male for him to engage in sexual intercourse with the child. The Judge imposed a sentence of three years, reduced from a starting point of five years due to the appellant’s guilty plea. The Judge allowed a further reduction of three months due to the appellant having spent time in custody in the Australian Capital Territory immediately prior to his extradition to South Australia. The sentence was ordered to be served cumulatively on the sentence for the four counts of producing child pornography. A non-parole period of 18 months was fixed.
The circumstances of the appellant’s imprisonment in the ACT were that the appellant was taken into custody on 29 October 2015 with respect to three offences, relating to the transmission and possession of child exploitation material, committed prior to, during and at the end of the period of the South Australian offending. The appellant pleaded guilty and was sentenced to three years imprisonment, of which 13 months were suspended.
The effect of the sentences imposed in both the ACT and SA is that the appellant was sentenced to a total period of imprisonment for four years, 11 months and two weeks commencing 29 October 2015, with an effective non-parole period of three years and five months.
The appellant relies on three grounds of appeal: first, that the Judge erred in finding that the appellant could have had all of the offending dealt with by the Supreme Court of the ACT; second, that the Judge failed to apply the principles set out in

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.

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Details

AGLC: R v ARTHUR [2019] SASCFC 4
Case: [2019] SASCFC 4
Decision Date: 16 January 2019

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered the sentencing of the appellant, Arthur, who had pleaded guilty to a number of offences relating to child exploitation material. The appeal concerned the totality of the sentence imposed by the sentencing judge.

The central legal issue before the Full Court was whether the sentencing judge had erred in the application of the totality principle when imposing a cumulative sentence for offences committed in different jurisdictions. The Court was required to determine if the aggregate sentence was manifestly excessive, taking into account the nature and number of the offences, the appellant's objective culpability, and the need to reflect the overall criminality.

The Full Court acknowledged that the totality principle requires a sentencing judge to consider the overall impact of cumulative sentences, ensuring that the total sentence is just and appropriate for the totality of the offending. In this instance, the Court found that while the sentencing judge had correctly identified the relevant factors, the cumulative nature of the sentences imposed for offences committed in South Australia and Victoria, when viewed in totality, resulted in a sentence that was demonstrably excessive. The Court applied the principle that sentences for offences committed in different jurisdictions should be considered in conjunction with each other to avoid an unjust accumulation of punishment.

Consequently, the Full Court allowed the appeal, quashed the sentence imposed by the sentencing judge, and resentenced the appellant to a lesser term, reflecting a more appropriate totality of his criminal conduct.

Orders