R v v, A - [2019] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v V, A
[2019] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Justice Doyle)
5 June 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - GENERALLY
Appeal against sentences imposed on one count of aggravated production of child exploitation material, one count of aggravated dissemination of child exploitation material, one count of indecent assault, and one count of being a party to the commission of an act of gross indecency.
The appellant, AV, sexually exploited her grandchildren by photographing them and distributing those photographs to her co-accused. One of the photographs depicted AV touching one of her grandchildren’s vagina with her fingers. AV took one of her grandchildren to the house of the co-accused, where she knew that the grandchild would be sexually assaulted.
AV was sentenced to a total period of imprisonment of five years, four months and 13 days imprisonment, with a non-parole period of four years and four months. The non-parole period was required to be at least four-fifths of the head sentence, by virtue of the fact that AV was deemed to be a serious repeat offender.
AV appeals on the grounds that the sentences and their accumulation, and the non-parole period were manifestly excessive.
Held per Kourakis J (Parker and Doyle JJ agreeing), dismissing the appeal:
1.    The sentences, although heavy are not manifestly excessive.
2.    The offence of aggravated indecent assault in itself warranted a substantial sentence.
3.    The single sentence for the combined offending of producing and disseminating child exploitation material was moderate.
4.    The appellant’s position of trust as a grandmother and her obligation of care when her grandchildren were with her demands condign punishment for the offence of being a party to the commission of an act of gross indecency.
5.    Viewed objectively, the facilitation of the act of gross indecency placed the child at substantial risk of more serious offending.
6.    The need to protect children from offending of this kind, and deter those who prey on them for their prurient interest, outweighs the sympathy excited by the appellant’s own life disadvantages and vulnerability.
Criminal Law Consolidation Act 1935 (SA) ss 56, 58, 63; Sentencing Act 2017 (SA) s 26, referred to.
R v Arthur [2019] SASCFC 4, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "child exploitation material", "obligation of care", "general deterrence"

R v V, A
[2019] SASCFC 61
Court of Criminal Appeal: Kourakis CJ, Parker and Doyle JJ

KOURAKIS CJ: The appellant, AV, appeals against sentences imposed on her conviction in the District Court on one count of aggravated production of child exploitation…

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 v, A

Details

AGLC: R v v, A [2019] SASCFC 61
Case: [2019] SASCFC 61
Decision Date: 5 June 2019

CaseChat Overview and Summary

The matter of *R v v, A* concerned an appeal against sentence. The appellant, v, A, had been convicted of multiple offences relating to child exploitation material. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Parker and Doyle JJ.

The central legal issue before the Full Court was whether the sentencing judge had erred in ordering that the sentences for the offences be served cumulatively, rather than concurrently. This involved an examination of the principles governing the imposition of cumulative sentences in South Australia, particularly in the context of serious offences involving child exploitation.

The Full Court considered the nature and gravity of the offences, the appellant's prior record, and the need for general and specific deterrence. Their Honours applied established sentencing principles, noting that while concurrent sentences are generally preferred, cumulative sentences may be imposed where the offending is of a serious nature, involves multiple victims or distinct criminal enterprises, or where the overall criminality warrants a longer period of imprisonment to reflect the totality of the offending. The Court found that the sentencing judge had not erred in principle in ordering the sentences to be served cumulatively, having regard to the circumstances of the offending.

The appeal against sentence was dismissed.

Orders