R v CAB

[2020] SASCFC 33

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CAB

[2020] SASCFC 33

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Doyle and The Honourable Justice Livesey)

5 May 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Application by the Director of Public Prosecutions for permission to appeal against a sentence imposed in the District Court.

The respondent is a serious registrable offender under the Child Sex Offenders Registration Act 2006 (SA) (CSORA). On 4 December 2019 he was convicted and fined $900 for committing the following three offences against the CSORA:

• failing to comply with reporting obligations contrary to s 44(1);

• failing to comply with reporting obligations relating to reportable contact with a child contrary to s 44(1a); and

• being a serious registrable who had reportable contact with a child and did not inform an available responsible of his status as a serious registrable offender or the offences that resulted in him receiving that status contrary to s 66L(2).

Each of the three offences was committed whilst the respondent was subject to a term of imprisonment, ordered to be served on home detention, that was imposed for three counts of child sexual offending that occurred between 1975 and 1989.

In the District Court, the Director made an application for the revocation of the respondent’s home detention order consequent upon the respondent committing the three offences. The sentencing Judge excused the breach of the order and dismissed the Director’s application for revocation. The respondent served the remainder of his home detention order without further incident and was released on parole on 16 May 2019.

In this Court the Director sought permission to appeal on two grounds; first, on the ground that the sentence imposed for the three offences was manifestly inadequate, and secondly, on the ground that the sentencing Judge erred in refraining to revoke the respondent’s home detention order.

Held, per Livesey J (Kourakis CJ and Doyle J agreeing) refusing permission to appeal:

1. Given the approach taken to the facts by the parties before the sentencing Judge, and bearing in mind the respondent’s personal circumstances, the fine of $900 was not a manifestly inadequate sentence.

2. It was open to the sentencing Judge to find that there were proper grounds to excuse the respondent’s breach of his home detention order and refrain from revoking the order.

3. In any event, the purposes that Crown appeals against sentence are intended to serve would not be met by a grant of permission to appeal.

Child Sex Offenders Registration (Miscellaneous) Amendment Act 2013 (SA); Child Sex Offenders Registration Act 2006 (SA) s 3, s 4, s 11, s 13, s 16, s 17, s 18, s 20A, s 44, s 66L; Criminal Law (Sentencing) Act 1988 (SA) s 58; Offenders Probation Act 1913 (SA) s 9;