R v KIRKBRIDE

This matter came before the Full Court of the Supreme Court of South Australia on an application for leave to appeal against sentence. The applicant, the Crown, contended that the sentence imposed on the respondent, Mr Kirkbride, for possessing child exploitation material was manifestly inadequate. The dispute centred on whether the sentencing judge erred in suspending the respondent's sentence of imprisonment.

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.