R v Atkins - [2023] SASC 166

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v ATKINS
[2023] SASC 166
Judgment of The Honourable Justice McDonald
23 November 2023
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROPORTIONALITY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
The defendant, Mr Atkins, was committed for sentence in the District Court, having entered guilty pleas to the offences of producing child exploitation material and failing to comply with reporting obligations on 9 December 2021. Prior to sentence, the Director of Public Prosecutions made an application pursuant to s 57 of the Sentencing Act 2017 (SA) seeking an order that Mr Atkins be detained in custody until further order of the Court on the basis that he is either unwilling, or unable to control his sexual instincts. Upon the Director making that application, Mr Atkins was remanded to appear before the Supreme Court for sentence and for the determination of the Director’s application.
Mr Atkins first appeared before the Court on 14 June 2022. On that occasion the Court ordered two legally qualified medical practitioners prepare a report in relation to whether Mr Atkins is incapable of controlling, or unwilling to control, his sexual instincts. Expert reports were provided by Dr Craig Raeside and Dr Owen Haeney on 29 July 2022 and 19 September 2022 respectively.
Three avenues for the resolution of the matter emerged during the course of sentencing: first, to sentence the defendant and make an order under s 57 which would begin at the expiration of his head sentence; second, to decline to sentence the defendant and make an order for his detention in custody until further order; or third, to sentence the defendant in the usual course and decline to make any further order.
Counsel made submissions on the application of s 54 of the Sentencing Act to the Director’s application in circumstances where the defendant is a serious repeat offender within the meaning of ss 53 and 54 the Sentencing Act, releasing the Court from the obligation to ensure that any sentence imposed is proportional to the offences charged. Owing to the amount of time already spent in custody by Mr Atkins, a proportional sentence would likely result in his immediate or near-immediate release from custody, affording the community little protection from his risk of recidivism.
Held, sentencing the defendant and declining to make an order for detention until further order: A disproportionate sentence of five years imprisonment with a four-year non-parole period is necessary for the protection of the community, having regard to the risk posed by the Defendant and the likelihood of his re-offending if released immediately into the community without further therapy. It remains open to the Director or the Attorney-General to make a further application once Mr Atkins approaches his release date, at which time the Court may assess the risk he poses to the community.

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 R v Atkins

Details

AGLC: R v Atkins [2023] SASC 166
Case: [2023] SASC 166
Decision Date: 23 November 2023

CaseChat Overview and Summary

The case of R v Atkins involved the defendant, Mr Atkins, who faced sentencing for multiple serious sexual offences. The case was heard in the South Australian Supreme Court, where the court had to determine an appropriate sentence that would adequately address the seriousness of the crimes and protect the community. The legal issues before the court included the appropriate discount for a guilty plea, the purpose of sentencing, and the application of the serious repeat offender provisions under the Sentencing Act 2017 (SA).

The court considered Mr Atkins' guilty plea and the significant risk he posed to the community due to his history of offending. Given his status as a serious repeat offender, the court was not bound to ensure proportionality in the sentence, and the non-parole period had to be at least four-fifths the length of the head sentence unless exceptional circumstances were present. The court deliberated on whether a disproportionate sentence was necessary to adequately protect the community, referencing the case of R v Smith where it was held that a disproportionate sentence could be justified if the risk of re-offending was particularly high and a proportionate sentence would not suffice.

The court ultimately decided that a disproportionate sentence was warranted in this case to adequately protect the community, considering the high risk posed by Mr Atkins. The court did not find any exceptional circumstances that would warrant a non-parole period less than four-fifths of the head sentence. The final orders included a lengthy term of imprisonment, reflecting the seriousness of the offences and the need to incapacitate Mr Atkins to prevent future harm.

Orders

Orders of the court

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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

Mr Atkins expressed his willingness to participate in the program to Dr Raeside and through his counsel during submissions.Sentencing ConsiderationsGuilty Plea Mr Atkins pleaded guilty to these offences on 9 December 2021. As a consequence, he is entitled to up to 25 per cent discount on that sentence.[15]Sentencing Purpose[15] Sentencing Act 2017 (SA) s 40(3). The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general).[16] That principle must underpin and inform whatever sentence Mr Atkins receives. His history of offending and the expert opinions as to the likelihood of Mr Atkins re-offending place the risk that Mr Atkins poses to the community at a very high level. It follows that the primary purpose of the Act must be given considerable weight when it comes to fashioning an appropriate sentence for Mr Atkins.Serious Repeat Offender[16] Sentencing Act 2017 (SA) s 3. Mr Atkins also satisfies the criteria of a serious repeat offender.[17] He has committed and been convicted of “at least two serious sexual offences committed on separate occasions.”[17] Sentencing Act 2017 (SA) s 53, s 54. There are two consequences that follow. The first is that in sentencing the person the Court is not bound to ensure that the sentence it imposes for the offence is proportional to the offending. The second is that any non-parole period fixed must be at least four-fifths the length of the head sentence unless exceptional circumstances can be established. The four-fifths consequence of being a serious repeat offender is mandatory unless the offender can establish special circumstances. It has not been suggested that there are any special circumstances in this case that would warrant fixing a non-parole period less than the mandated four-fifths. On the question of proportionality, the section says no more than the Court is not bound or required to ensure it imposes a proportionate sentence. The section gives no further guidance; a sentencing Court is free to depart from what has been regarded, at common law, as a fundamental guiding principle when sentencing offenders. In R v Smith,[18] Hinton J was required to consider the application of s 54(1). He made the following observation: I return to s 54(1). It is an exceptional step for a Court to impose a sentence that is not bounded by proportionality. Where s 54 is enlivened it can be expected that a sentencing Court will impose a disproportionate sentence if the risk of re-offending is particularly high such that the community cannot be adequately protected by a proportionate sentence and the likely offence that may be committed is one that calls for the offender’s incapacitation. Such case is one where the offender will not likely respond to a proportionate sentence calling for a more severe approach. [18] [2018] SASC 185 at [93]. In R v Smith the serious nature of the offences for which Mr Smith was being sentenced resulted in him receiving a sentence of a very lengthy term of imprisonment such that a disproportionate sentence was not required in order to protect the community.