R v TAA

[2021] SASCA 36

Supreme Court of South Australia

(Court of Appeal: Criminal)

R v TAA

[2021] SASCA 36

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)

21 May 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES

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

Crown application for permission to appeal against sentence.

The respondent pleaded guilty to various offences, including:

• Two counts of possessing child exploitation material contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA);

• Three counts of failing to comply with various reporting obligations contrary to ss 44(1a) and 44(1) of the Child Sex Offenders Registration Act 2006 (SA); and

• Four counts of producing child exploitation material contrary to s 63 of the Criminal Law Consolidation Act 1935 (SA).

For the possession offences, the sentencing Judge adopted a starting point of 2 years 6 months imprisonment.  This was reduced by 40 per cent on account of his guilty pleas to 1 year 6 months imprisonment.  For the reporting offences, the Judge adopted a starting point of 1 year 8 months imprisonment, reduced by 40 per cent on account of his pleas to 1 year imprisonment.  For the production offences, his Honour adopted a starting point of 3 months imprisonment.  This was reduced by 20 per cent on account of his guilty pleas to 2 months 13 days imprisonment. 

The sentencing Judge accumulated the above sentences, arriving at a total head sentence of 2 years 8 months 13 days imprisonment.  His Honour fixed a non-parole period of four-fifths of the head sentence, being 2 years 1 month 29 days, and back-dated the sentence to commence on 25 July 2018, being the date the respondent was taken into custody.  The Judge noted that the non-parole period had passed, and that the sentence would soon be completed.  The respondent has since been released from custody.

The Director seeks permission to appeal on the basis that the penalty imposed for the production offences (in particular, the starting point of 3 months imprisonment) is manifestly inadequate. 

Held (by the Court), refusing the application for permission to appeal:

1.      Having regard to the seriousness of the respondent’s conduct in respect of the production offences, particularly in the context of the other offending for which the respondent pleaded guilty and his other relevant prior offending, the starting point of 3 months was manifestly inadequate.

2.      However, in light of considerations of double jeopardy arising from the respondent’s release from prison prior to the appeal, and the fact that manifest inadequacy has only been contended in respect of one component of a significantly greater overall sentence, it is not necessary for the Court to intervene.

Criminal Law Consolidation Act 1935 (SA) ss 63A & 63; Child Sex Offenders Registration Act 2006 (SA) ss 44(1a) & 44(1), referred…