(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
1 September 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Police located child exploitation material (CEM) on a USB, desktop computer, and mobile phone at the respondent’s residence. The USB contained 10,879 files, the majority of which were accepted to be category 1 CEM (depictions of children not involving sexual activity). But the respondent’s CEM also included 265 files within category 4 (depictions of penetrative sexual activity involving a child).
The respondent pleaded guilty to two counts of possessing CEM, contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA), with one count aggravated by reason that the depicted children were under the age of 14 years old.
The sentencing judge imposed a single sentence on both counts, commencing with a notional head sentence of 18 months, reduced by 25 per cent for his plea of guilty and made cumulative with a separate sentence on account of his breach of a suspended sentence bond. The overall head sentence was 1 year, 4 months and 29 days imprisonment, with a non-parole period fixed of 8 weeks.
The Crown seeks permission to appeal on the basis that the starting point for the head sentence as well as the non-parole period were manifestly inadequate and warrant the intervention of the Court.
Held, per the Court, granting permission to appeal, allowing the appeal, and resentencing the respondent:
1.The non-parole period, but not the starting point for the head sentence, was manifestly inadequate.
2.It is appropriate in this case for the Court to intervene so as to reinforce the principles governing the fixing of an appropriate non-parole period.
3. In resentencing the respondent, a higher non-parole period of 7 months is fixed.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Nankivell [2022] SASCA 87
Case
[2022] SASCA 87
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by the Director of Public Prosecutions against a sentence imposed on the respondent, R v Nankivell, by a sentencing judge. The Director contended that the sentence, specifically the non-parole period, was manifestly inadequate.
The central legal issue before the court was whether the non-parole period fixed by the sentencing judge was so disproportionate to the head sentence and the gravity of the offending as to be manifestly inadequate, and whether this inadequacy warranted granting permission to appeal. The court was required to consider the principles governing Crown appeals against sentence, particularly in circumstances where the inadequacy might be considered an error of principle or shake public confidence in the administration of justice.
The court reasoned that the lack of a meaningful proportion between the non-parole period and the head sentence, and consequently between the non-parole period and the seriousness of the offences, rendered that aspect of the sentence manifestly inadequate. While acknowledging the sentencing judge's well-intentioned approach aimed at rehabilitation, the court found it reflected an idiosyncratic view that did not adequately serve broader sentencing objectives. The court determined that intervention was necessary to reinforce the principles for fixing appropriate non-parole periods, even though it meant the respondent would be subject to further proceedings.
Accordingly, the court granted permission to appeal.
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
In short, the lack of any meaningful proportion between the non-parole period and head sentence, and hence between the non-parole period and the gravity of the offending, rendered this aspect of the sentence imposed by the sentencing judge manifestly inadequate. The sentence, by reason of the disproportionately low non-parole period, even having regard to the respondent’s personal circumstances, did not achieve the objectives of the sentencing exercise.Conclusion Despite our conclusion that the Director has established manifest inadequacy in the non-parole period imposed by the sentencing judge, it does not necessarily follow that permission to appeal should be granted. The circumstances in which permission to appeal will be granted on a Crown appeal are confined to rare and exceptional cases.[41] [41] Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson & Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [1]-[2] (French CJ, Crennan and Kiefel JJ); Cumberland v The Queen (2020) 94 ALJR 656 at [4]-[6], [33] (Bell, Gageler and Nettle JJ). Permission to appeal may be appropriate where this Court’s intervention is desirable to address an error of principle, to establish and maintain adequate standards of sentence, to enable idiosyncratic views of individual judges to be corrected, or to correct a sentence which is so inadequate that it involves an error of principle.[42] Alternatively, if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, it may be appropriate to grant permission to appeal even though no point of general principle will be established by the case.[43][42] R v Buttigieg [2020] SASCFC 38 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing); R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).[43] R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ); R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ). It is relevant in the present case that the respondent, having received his sentence, had an expectation that he would be eligible to apply for parole within eight weeks. The hearing of this appeal was expedited so that it was heard only a few days after the expiration of that period. Whilst the respondent had made an application for parole by the time the appeal was heard, that application has not been determined and he remains in custody. At the conclusion of the appeal hearing the Court announced its intention to deliver its decision within about a week so as to minimise the duration of the respondent’s uncertainty as to his fate. Against this, the sentencing judge’s approach to the sentencing exercise, although obviously well-intentioned, and designed to give effect to his Honour’s views as to the most effective path to rehabilitation, nevertheless reflected an idiosyncratic approach. While the sentencing exercise involves a broad discretion, and permits leniency (even a measure of mercy[44]) in appropriate cases, it is important that sentencing judges not lose sight of some of the broader sentencing objectives in pursuit of more individualised justice for an offender. It is unfortunate that the respondent is to be twice vexed in this way, but it is appropriate that this Court intervene so as to reinforce the principles governing the fixing of an appropriate non-parole period. Accordingly, permission to appeal should be granted.[44] R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).