R v Thompson - [2014] SASCFC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v THOMPSON
[2014] SASCFC 33
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
10 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
The appellant pleaded guilty to an offence of aggravated accessing child pornography and of aggravated dissemination of child pornography. The Judge sentenced the appellant to one year and nine months, reducing the head sentence from two years and six months on account of the appellant’s early guilty plea. The Judge fixed a non-parole period of 12 months.
The appellant appeals on the ground that it was manifestly unreasonable to refuse to suspend the sentence and to impose a non-parole period as long as 12 months.
Held (Kourakis CJ, Gray and Stanley JJ agreeing):
It was not manifestly unreasonable of the Judge to decline to suspend the sentence (Kourakis CJ at [17]). Given the appellant’s counsel made no submissions on the non-parole period, it is not arguable that the non-parole period was manifestly excessive (Kourakis CJ at [19]).
Even though an offenders potential for rehabilitation may more strongly be reflected in the non-parole period than the head sentence, it must still reflect the general deterrence which remains an important consideration notwithstanding the personal circumstances of offenders against the child pornography laws of this State (Kourakis CJ at [18]).
Permission to appeal against the non-parole period refused and the appeal dismissed (Kourakis CJ at [21]).
Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
R v Padberg (2010) 107 SASR 386, discussed.
Baldwin v Police [2007] SASC 214; R v Gordon, ex parte Director of Public Prosecutions [2009] QCA 209; R v Sykes [2009] QCA 267; Director of Public Prosecutions (Tas) v Latham [2009] TASSC 101; Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60, considered.

R v THOMPSON
[2014] SASCFC 33
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: This is a sentence appeal.The appellant pleaded guilty in the Magistrates Court to an offence of aggravated accessing child pornography and an offence of aggravated dissemination of child pornography. The aggravating circumstance of both offences was that the children depicted were under the age of 14 years. The maximum penalty for the former offence is seven years imprisonment and for the latter 12 years imprisonment.
The Judge commenced with a notional single sentence for both offences of two years and six months. He reduced that head sentence to one year and nine months on account of the appellant’s early guilty plea. The Judge fixed a non-parole period of 12 months. The Judge observed that the appellant had no previous convictions but refused to wholly suspend the sentence. The Judge concluded that because the need to deter offences of…

Grounds of appeal

[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.

Continue reading R v Thompson

Details

AGLC: R v Thompson [2014] SASCFC 33
Case: [2014] SASCFC 33
Decision Date: 10 April 2014

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the applicant, R, against the decision of a sentencing judge. The specific offences for which the applicant was sentenced are not detailed in the provided text, but they relate to child pornography and child exploitation material. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Gray J, and Stanley J.

The central legal issue before the Full Court was whether the sentencing judge had erred in their approach to sentencing, particularly concerning the weight given to general deterrence and the judge's reference to an "urgent" need for deterrence. The applicant sought to appeal the non-parole period imposed.

Kourakis CJ clarified that while general deterrence is a significant factor in sentencing for child exploitation offences, the concept of "urgency" as previously used in other judgments referred to the immediate need to correct an inadequate sentence on appeal, rather than a factor to be considered at first instance. The Chief Justice affirmed that at the initial sentencing stage, general deterrence must be given considerable weight, and the sentencing judge's use of the word "urgent" was likely directed towards this principle.

The Full Court dismissed the appeal. Kourakis CJ refused permission to appeal against the non-parole period, and Gray J and Stanley J agreed with the Chief Justice's reasons and proposed orders.

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

I mention one final matter. The Judge referred to the “urgent” need for deterrence in sentencing for offences of this kind. I suspect that the Judge may have had in mind the last of the cited passages from my reasons in Padberg. The “urgency” to which I referred in that paragraph was the need to immediately correct the manifestly inadequate sentence in Padberg without first issuing a warning. In sentencing at first instance for offences of this kind, general deterrence must be given considerable weight but questions of “urgency” do not arise. I am certain that it is to the considerable weight which must be accorded general deterrence that the Judge’s use of the word “urgent” was directed.Conclusion I would refuse permission to appeal against the non-parole period. I would dismiss the appeal GRAY J: I agree with the orders proposed by the Chief Justice. I do not wish to add to his Honour’s reasons. STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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