R v Bolbot - [2013] SASCFC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BOLBOT
[2013] SASCFC 110
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Stanley)
18 October 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
The appellant pleaded guilty to two counts of producing child pornography and one count of aggravated possessing child pornography. He also pleaded guilty to failing to comply with his bail agreement and operating a restricted access computer system. He was sentenced to three years' imprisonment, with a non-parole period of 15 months' imprisonment. He appeals against sentence on the grounds that the non-parole period was manifestly excessive, and that the sentencing Judge erred in failing to suspend the sentence of imprisonment.
Held (The Court):
(1) No error of principle has been demonstrated. The sentence and non-parole period were well within the range for ofending of this nature at [35].
(2) There was no error in declining to suspend the sentence. The Judge had regard to all relevant matters. No error has been demonstrated in her decision not to suspend the sentence at [33]-[34].
Criminal Law (Sentencing) Act 1988 (SA) s 19(2)(c), s 18A, referred to.
R v Padberg (2010) 107 SASR 386; R v Hill [2011] SASCFC 109; R v Ryan [2012] SASCFC 136; R v Riddle [2012] SASCFC 82, considered.

R v BOLBOT
[2013] SASCFC 110
Court of Criminal Appeal: Sulan, Blue and Stanley JJ

THE COURT: The defendant and appellant, Steven John Bolbot, pleaded guilty in the District Court to two counts of producing child pornography and one count of aggravated possessing child pornography. He also pleaded guilty to failing to comply with his bail agreement and operating a restricted access computer system. He was sentenced to three years’ imprisonment, with a non‑parole period of 15 months. He now appeals against sentence on the grounds that the non-parole period was manifestly excessive, and that the sentencing Judge erred in failing to suspend the sentence of imprisonment.
The offending
On 1 March 2008 the defendant was on an internet chat room and engaged in a role-play conversation with another person. During the course of the chat room discussion, that person assumed the role of a child aged two to eight years old. The defendant and the other person were involved in a sexually explicit conversation, which described the appellant performing an act of fellatio on the child. This conduct is the first count of producing child pornography.
The second count of producing child pornography relates to an occasion on 4 February 2012 when the defendant communicated, via an internet chat room, with another person. That person assumed the identity of a two year old girl and a similar conversation ensued, with the defendant graphically describing engaging 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.

Continue reading R v Bolbot

Details

AGLC: R v Bolbot [2013] SASCFC 110
Case: [2013] SASCFC 110
Decision Date: 18 October 2013

CaseChat Overview and Summary

The appellant, R v Bolbot, appealed against a sentence imposed by a sentencing judge. The appellant had pleaded guilty to two counts of producing child pornography, one count of aggravated possession of child pornography, failing to comply with a bail agreement, and operating a restricted access computer system. The sentencing judge imposed a total term of three years' imprisonment with a non-parole period of 15 months. The appeal argued that the non-parole period was manifestly excessive and that the sentencing judge erred in failing to suspend the sentence.

The Court of Appeal was required to determine whether the sentencing judge erred in principle by imposing a non-parole period that was manifestly excessive, and whether the decision not to suspend the sentence was an error.

The Court found no error of principle in the sentencing decision. It held that the sentence and non-parole period were within the acceptable range for offences of this nature. Furthermore, the Court determined that there was no error in the sentencing judge's decision to decline suspending the sentence, as all relevant matters had been considered. Consequently, the appeal was dismissed.

Orders

Orders of the court

Held (The Court):

(1) No error of principle has been demonstrated. The sentence and non-parole period were well within the range for ofending of this nature at [35].

(2) There was no error in declining to suspend the sentence. The Judge had regard to all relevant matters. No error has been demonstrated in her decision not to suspend the sentence at [33]-[34].

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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