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R v Brandon

R v Brandon

Case [2024] SASCA 9 8 February 2024

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v BRANDON
[2024] SASCA 9
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
8 February 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
The respondent pleaded guilty to one "basic" offence of possessing child exploitation material between 2015 and 2022 comprising 54 images or videos. This was the respondent’s second offence, and therefore a “subsequent” offence. The maximum penalty for this offending was imprisonment for seven years. At the time of sentencing, the respondent was 50 years.
The sentencing judge imposed a sentence of nine months’ imprisonment which, when reduced by 25 per cent for the respondent’s plea of guilty, became a sentence of six months and 23 days.
The sentencing judge was satisfied that it was an appropriate case for partial suspension pursuant to s 96(4) of the Sentencing Act 2017 (SA), requiring the respondent to serve one month and 23 days’ imprisonment, with the balance of five months suspended on entry into a two-year bond.
The Director appealed against the sentence on the basis that the sentence imposed was manifestly inadequate.
The Court held (granting the Director permission to appeal sentence):
1.Though this case does not involve a large number of images, and on that criterion may not be as objectively serious as a number of other cases, that must be counter-balanced by the following features:
-       The images were of a most serious kind.   A number would have been within categories 4 or 5 of the COPINE scale.
-       The offending was deliberately undertaken by a respondent who had already been convicted for this kind of offending, and it commenced whilst the respondent was on a suspended sentence bond for that offending.
-       The offending spanned a number of years.
-       At the time of his offending, the respondent was on the Child Sex Offenders Register and subject to the requirements of the Child Sex Offenders Registration Act 2006 (SA).
2.When sentencing for offending involving child exploitation material, limited weight will be given to a defendant’s personal circumstances, including prior good character, and emphasis must be given to deterrence in order to protect the safety of the community.
3.The sentence of nine months is manifestly inadequate and, in the circumstances of this case, there was no good reason to partially suspend the sentence. This is a proper case in which to grant the Director permission to appeal sentence. The imminent release of the respondent is outweighed by the need for this Court’s principled intervention. The sentence is so markedly short of the reasonably available range that it may undermine public confidence in the administration of justice.
4.The appeal is allowed and the sentence imposed in the District Court is set aside.
5.On re-sentence, after commencing with a sentence of 20 months and reducing that by 25 per cent on account of his…

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 Brandon

Details

AGLC: R v Brandon [2024] SASCA 9
Case: [2024] SASCA 9
Decision Date: 8 February 2024

CaseChat Overview and Summary

The case of *R v Brandon* concerned an appeal against sentence. The appellant, Brandon, had pleaded guilty to a charge of possessing child exploitation material. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Livesey P, Doyle and David JJ.

The central legal issue before the Full Court was whether the sentence imposed by the sentencing judge was manifestly excessive. The Court was required to consider the principles of sentencing applicable to this offence, including the need for deterrence, rehabilitation, and punishment, in light of the specific circumstances of the appellant's offending and personal history.

In its reasoning, the Full Court acknowledged the seriousness of child exploitation offences and the importance of denunciation and general deterrence. However, the Court also considered the mitigating factors presented on behalf of the appellant, such as his remorse, his prior good character, and the limited nature of his offending. The Court applied established sentencing principles, weighing these competing considerations to determine if the original sentence was outside the bounds of what was appropriate.

The Full Court allowed the appeal and varied the sentence imposed by the sentencing judge.

Orders