R v TAA

Case [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…

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AGLC
R v TAA [21 May 2021] SASCA 36
Case
[2021] SASCA 36
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions applied for permission to appeal against the sentence imposed on the respondent, TAA, by the Supreme Court of South Australia. The dispute concerned the adequacy of the sentence for offences relating to child pornography and child exploitation material.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed on the respondent for production offences was manifestly inadequate, and if so, whether intervention was warranted.

The Court acknowledged that the starting point of three months imprisonment for the production offences was manifestly inadequate, particularly when considered alongside the respondent's other offending and prior convictions. However, the Court ultimately refused the application for permission to appeal. This decision was based on considerations of double jeopardy, given the respondent's release from prison prior to the appeal, and the fact that the inadequacy was only argued in relation to one part of a larger sentence. The Court concluded that intervention was not necessary and that the inadequacy could be addressed through observations made in the reasons for judgment.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Bearing all of the above matters in mind, and while satisfied that the starting point for the component of the overall sentence referable to the production offences was manifestly inadequate, we are satisfied that this can be adequately addressed through the observations that have been made in these reasons.[20] It is not necessary for the Court to intervene.[20] R v Buttigieg [2020] SASCFC 38 at [57]-[64]; R v Maroroa [2020] SASCFC 68 at [96], citing R v Borkowski (2009) 195 A Crim R1 at [70]. Conclusion For these reasons, we refuse the Director’s application for permission to appeal.

Ratio Decidendi

Legal Principle Established

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