R v Warsap

This matter concerned an appeal against sentence brought by the defendant, R v Warsap. The appeal arose from a sentencing hearing in the Supreme Court of South Australia following the defendant's guilty plea to the offence of persistent sexual exploitation of a child. The District Court Judge had initially remanded the defendant to the Supreme Court for an inquiry under section 23 of the *Criminal Law (Sentencing) Act 1988* (SA) to determine if the defendant was incapable of controlling his sexual instincts.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge retained jurisdiction to impose a sentence after declining to make an order under section 23 of the *Criminal Law (Sentencing) Act 1988* (SA), and alternatively, if jurisdiction was retained, whether the matter should have been remitted to the District Court for sentencing. The defendant argued that the failure to make a section 23 order divested the Supreme Court of jurisdiction to sentence, or that the matter should have been returned to the District Court.

The Full Court held that the inquiry under section 23 was a preliminary step that did not preclude the sentencing judge from proceeding to sentence the defendant if no order was made under that section. The court reasoned that the *Criminal Law (Sentencing) Act 1988* (SA) contemplated that a judge conducting a section 23 inquiry could, upon finding that the criteria for such an order were not met, proceed to impose a sentence under the general sentencing provisions of the Act. Therefore, the Supreme Court Judge had not erred in proceeding to sentence the defendant.

The appeal was dismissed, and the sentence of 13 years imprisonment with a non-parole period of nine years was affirmed.