SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v KIRKBRIDE
[2025] SASCA 5
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice Stein)
30 January 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
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 - SENTENCE
During a search on the respondent's laptop computer, the police located 13 items of child exploitation material. The respondent subsequently pleaded guilty to one count of aggravated possession of child exploitation material and one count of basic possession of child exploitation material.
The sentencing Judge imposed a single sentence of two years imprisonment, reduced on account of the respondent’s guilty pleas to one year, 10 months and 25 days imprisonment. A non-parole period of one year was fixed. The sentencing Judge suspended the sentence.
The Director of Public Prosecutions seeks permission to appeal on the basis the starting point of the sentence and order for suspension was manifestly inadequate.
Held, per the Court, refusing permission to appeal:
1. The sentence imposed was not manifestly inadequate.
2. The decision to suspend the sentence was open to the sentencing Judge.
Criminal Law Consolidation Act 1935 (SA) s 63A(1); Sentencing Act 2017 (SA) ss 26, 96(1); Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA); Statutes Amendment (Child Sex Offences) Act 2022 (SA), referred to.
Elias v The Queen (2013) 248 CLR 483; Everett v The Queen (1994) 181 CLR 295; Hackett v The Queen [2021] SASCA 32 ; House v The King (1936) 55 CLR 499; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Markarian v The Queen (2005) 228 CLR 357; R v Ametovic [2024] SASCA 153; R v Bradley [2024] SASCA 56; R v Brandon [2024] SASCA 9; R v Butler (a pseudonym) (2022) 303 A Crim R 296; R v Buttigieg (2020) 352 FLR 170; R v Dyett [2023] SASCA 41; R v Kelly [2023] SASCA 22; R v Lian [2023] SASCA 122; R v McIntyre (2020) 138 SASR 17; R v Nankivell [2022] SASCA 87; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Padberg (2010) 107 SASR 386; R v Pham (2015) 256 CLR 550; R v Turvey (2017) 127 SASR 425; R v Urch [2024] SASCA 28; R v Yaroslavceff [2022] SASCA 123; Wong v The Queen (2001) 207 CLR 584, considered.
R v KIRKBRIDE
[2025] SASCA 5Court of Appeal – Criminal: Lovell and Bleby JJA and Stein AJA
THE COURT: On 1 August 2020, having received intelligence that the respondent had accessed a Russian website known to facilitate sharing…
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- R v KIRKBRIDE [2025] SASCA 5
- Case
- [2025] SASCA 5
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court were whether the sentence imposed was manifestly inadequate, both in its length and in the decision to suspend it. The Crown argued that the sentencing judge's decision to suspend the sentence was not open to him, given the seriousness of the offending and the need to uphold community standards.
The Full Court acknowledged the sentencing judge's findings that the possession of child exploitation material is not a victimless crime, highlighting the degradation and abuse inherent in its production. The court agreed that personal deterrence and reflecting the seriousness of the offending were necessary considerations, as was the protection of the community. While the sentencing judge had regard to favourable factors such as the respondent's lack of criminal history and the limited volume of material, he ultimately imposed a two-year sentence, discounted to one year, 10 months and 25 days, with a non-parole period of one year. Crucially, the sentencing judge suspended this sentence, requiring the respondent to enter into a bond and undergo psychological and sexual offender treatment. The Full Court found that the sentencing judge had erred in suspending the sentence, concluding that it was not open to him to do so in the circumstances.
The Full Court granted leave to appeal, allowed the appeal, and resentenced the respondent to two years imprisonment, with a non-parole period of one year. The sentence was not suspended, and the respondent was ordered to serve a portion of his sentence in custody, with the remainder suspended upon entering into a bond and complying with treatment conditions.
Orders
Orders of the court
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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
The findings of the sentencing Judge were inconsistent with some of the assumptions made by Ms Heinrich.Sentencing considerations The sentencing Judge noted that the offence of possessing child exploitation material is not a victimless crime. The production of such material involves degradation, humiliation, and abuse of children. The sentencing Judge found it was necessary to personally deter the respondent from further offending and to reflect the seriousness of the offending. The sentencing Judge stated the offending undermines the fabric of society in the sense it contributes to psychological and physical harm to the children involved. The exploitation and abuse of children, and the sexual gratification of adults is not to be tolerated by the community. The paramount consideration is the protection of the community. The sentencing Judge noted that the respondent had spent 21 days in custody before being granted bail. His time in custody had been a salutary experience. The sentencing Judge had regard to matters favourable to the respondent, including his lack of criminal history, positive work history, the limited volume of materials in the respondent’s possession, and the likelihood of the respondent returning to a productive role in the community. In relation to both counts on the Information, the sentencing Judge imposed a single penalty, pursuant to s 26 of the Sentencing Act 2017 (SA), of two years imprisonment. The sentencing Judge allowed the five per cent discount, making the sentence one year, 10 months and 25 days. He fixed a non-parole period of one year. Allowing for the 21 days for the time in custody, the final sentence was one year, 10 months and four days imprisonment, with a non-parole period of 11 months and nine days. The sentencing Judge recognised that this type of offending usually attracted an immediate sentence of imprisonment reflecting the seriousness of such offending. However, the sentencing Judge found there was good reason to suspend the sentence. The sentencing Judge suspended the sentence of imprisonment upon the respondent entering into a bond in the sum of $1,000 for a two-year period. It was a condition of the bond that the respondent undergo psychological treatment as directed, including partaking in sexual offender treatment programs. The sentencing Judge noted that he was aware that such treatment which the respondent requires is not available within the prison system for what are described as non-contact sexual offenders. Grounds of appeal The applicant seeks permission to appeal on a single ground, namely that the sentence imposed was manifestly inadequate. At the appeal hearing, the applicant contended that the ground related to both the length of the sentence imposed and the fact that the sentence was suspended. That is, the applicant contended that it was not open to the sentencing Judge to suspend the sentence. Applicant’s submissions The applicant accepted that no specific error could be established. The applicant alleged an outcome error had occurred as the starting point and suspension of the sentence failed to maintain adequate standards of punishment for this type of offending.