R v GIBBS

This matter concerned an appeal by the Crown against the sentence imposed on the respondent, R v Gibbs, in the Supreme Court of South Australia. The appeal focused on whether the sentencing judge had erred in applying the sentencing standards established in *R v D* for child sexual abuse offences.

The central legal issue before the Full Court was to determine the appropriate sentencing standard for the respondent's offences, specifically whether the sentencing judge had correctly applied the principles of *R v D* and the subsequent legislative amendment to section 29D of the *Criminal Law (Sentencing) Act 1988* (SA). The court was required to consider whether the respondent's individual circumstances justified a departure from the established sentencing benchmark and whether the non-parole period was appropriately set.

The Full Court, in its reasoning, emphasised the importance of consistency in sentencing, particularly for child sexual abuse offences, citing *Wong v The Queen* and *Director of Public Prosecutions v Dalgliesh*. It noted that section 29D of the *Criminal Law (Sentencing) Act 1988* (SA) had given legislative force to the sentencing standards in *R v D*, requiring their application unless a specific explanation for departure was provided. While acknowledging the inherent flexibility in sentencing, the court stressed that any deviation from the standard must be judicially exercised and supported by circumstances distinguishing the case from the generality of cases. The court found that the sentencing judge had not adequately justified a departure from the established standard and had set a non-parole period disproportionately low.

Consequently, the Full Court granted permission to appeal, allowed the appeal, set aside the original sentence, and imposed a new sentence of 11 years and nine months imprisonment, with a non-parole period of seven years, to be taken to have commenced on 3 July 2017.