R v KIMMINS

[2015] SASCFC 119

Supreme Court of South Australia

(Court of Criminal Appeal)

R v KIMMINS

[2015] SASCFC 119

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)

18 August 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

The appellant stood for sentence in the District Court for two counts of contravening a paedophile restraining order and as a result of breaching a bond imposed in the District Court requiring him to come up for sentence if called upon - having regard to the proposed sentence for the two breaches of restraining order the judge estreated the bond but imposed no further penalty - for the two breaches of restraining order the judge imposed one sentence of 16 months and two weeks imprisonment with a non-parole period of eight months - appellant argues judge wrongly used discount of 30 per cent for the pleas of guilty in circumstances where the maximum rate was 40 per cent - appellant also argues that the sentence was manifestly excessive given the nature of the breaches and the appellant's intellectual challenges.

Held:  appeal dismissed - the sentences fell within the area of discretion reserved to the judge for such offending - although the judge mistook the applicable maximum discount rate this was not a case where the Court considers a different sentence should have been passed.

Summary Procedure Act 1921 (SA) s 99I; Criminal Law Consolidation Act 1935 (SA) s 353(4), referred to.

R v KIMMINS
[2015] SASCFC 119

Court of Criminal Appeal:  Vanstone and Kelly JJ and David AJ

1. THE COURT:  The appellant was sentenced in the District Court for two offences of contravening a paedophile restraining order (PRO), contrary to s 99I of the Summary Procedure Act 1921 (SA).  On the same occasion he was dealt with for having breached a good behaviour bond entered in the District Court on 8 December 2014 for possessing child pornography and producing child pornography.  The terms of the bond were that he was to come up for sentence if called upon.  The sentencing judge estreated the bond but imposed no further penalty, stating that because of the penalty she intended to impose for the PRO offences, no further penalty would be imposed.

2. The maximum penalty for contravening a PRO is two years imprisonment.

3. The two breaches before the District Court were the second and third proven breaches of the PRO.  That order prohibited the appellant from using a device capable of connecting to the internet.  The first breach had been committed between 7 and 28 June 2014 and had been dealt with in the Magistrates Court on 30 January 2015, when a two month suspended sentence was imposed.  On that occasion the appellant entered into a bond for a term of 18 months to be of good behaviour.

4. The sentencing judge described the second breach as occurring on 4 August 2014, when the appellant accessed the internet at a library.  However, it was agreed that the judge should have regard to the fact that there were 44 other such occasions of similar access.

5. It was some seven days after being dealt with in the Magistrates Court that the third breach was detected.  Plainly, that breach was also a breach of the suspended sentence bond.  The appellant has been in custody since that third breach on 6 February 2015.  On that occasion police located a mobile telephone, with internet access, in the appellant’s possession.  The appellant admitted to police that he was aware that he was subject to the PRO and that he understood its conditions.  He said he had possessed the telephone for about two weeks and knew that it was capable of accessing the internet.  There was no evidence that in committing the second and third breaches the appellant had used the internet to contact children or access pornography.

6. The judge imposed a sentence of 16 months and 2 weeks imprisonment with a non-parole period of 8 months.  Her Honour took as her starting point a single sentence of two years imprisonment and gave a discount of just over 30 per cent to reflect the early pleas of guilty.  The sentence was backdated to 6 February 2015.  The non-parole period will expire on about 5 October 2015.  This appeal is against that sentence.

7. The appellant complains that the sentence was affected by error.  He asserts that the judge should have applied a discount of 40 per cent, rather than 30 per cent, on account of the fact that the pleas were entered within four weeks of the appellant’s first appearance in court.

8. The appellant also asserts that the sentence is manifestly excessive, having regard to the nature of the two later breaches.  The appellant’s counsel points to the fact that the appellant, who is 33 years of age, is of low intellect.  It is submitted that the breaches were at the lower end of the scale of such offences and that the appellant’s intellectual difficulties might not have made him appreciate the rigour of the terms of his PRO.

9. It is apparent from the sentencing remarks that the judge approached this matter with care and attention to the detail of it.  The judge dealt with the appellant’s recent history and referred to his explanation for these offences.  The judge also dealt with the appellant’s personal circumstances and observed that for various reasons, including bureaucratic oversights and the appellant having been arrested for further matters, suggestions that he should receive counselling as part of a program for sex offenders had either not been taken up or if commenced, not completed.

10. As mentioned, although the sentence was actually imposed in relation only to the second and third breaches, the breach of the three year good behaviour bond imposed in December 2014 was also before the judge.  It is misleading to assess the sentence imposed without reference to that breach, which alone, exposed the appellant to the possibility of a significant sentence.

11. It is true that the two breaches did not involve any proven occasion of accessing child pornography, or other offending related to children.  It is also true that the appellant has a relatively low level of intellectual functioning.  However, the judge had to deal with a man who had repeatedly shown himself prepared to contravene the terms of the PRO.  The fact that the two offences followed an earlier breach, and followed the bond imposed by another judge of the court, were relevant matters.  In our view the sentence imposed was within the area of discretion reserved to the sentencing judge.

12. We return to the matter of the failure to afford to the appellant the full 40 per cent discount for early guilty pleas. The fact that the appellant was eligible for the full discount was not drawn to the judge’s attention during submissions. Indeed, at the end of her sentencing remarks the judge asked counsel whether there was anything further and was told that they had nothing to raise. Notwithstanding this, the appellant had pleaded guilty at a very early stage and, absent a good reason, was entitled to expect the full discount. That is an error which would justify this Court’s intervention if the Court considered “that a different sentence should have been passed”: s 353(4) Criminal Law Consolidation Act 1935 (SA). The difference between the head sentence which would have been imposed, had the full 40 per cent discount been given, as against the head sentence actually imposed, is two months imprisonment. The non-parole period fixed was slightly less than 50 per cent of the head sentence. In our view the head sentence was not excessive and the non-parole period was merciful having regard to the appellant’s repeated breaches of court orders and his history of offending generally.

13. Notwithstanding the error made by the judge, this is not a case where the Court considers that a different sentence should have been passed.

14. The appeal is dismissed.