(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David)
8 May 2025
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - LEGISLATIVE HISTORY OF ACT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WHOLE ACT TO BE CONSIDERED
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - PURPOSIVE APPROACH
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against conviction and sentence.
The appellant was found guilty of one count of procuring a child to engage in, or submit to, a sexual activity, contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA). The prosecution case was that the appellant procured the complainant to engage in, or submit to, sexual activity by engaging in sexualised discussions on Facebook Messenger between 13 November 2022 and 28 November 2022.
The appellant was sentenced to a period of imprisonment of one year and six months with a non-parole period of nine months.
On the appeal against conviction, the appellant raised one issue, being whether knowledge that the person procured is under the prescribed age is an element of the first offence under s 63B(3)(a).
Held (by the Court) dismissing the appeal against conviction:
1.The first offence in s 63B(3)(a) does not require that the defendant know that the person being procured is under the prescribed age.
On the appeal against sentence, the appellant raised two issues:
1. whether the sentence imposed was manifestly excessive; and
2.whether the judge erred in her approach to the question of the appellant’s knowledge of the complainant’s age.
Held (by the Court) granting permission to appeal against sentence but dismissing the appeal:
1.It was open to the judge to reach the conclusion that she did about the appellant’s suspicion as to the complainant’s age.
2.The approach taken by the judge following the identification of an erroneous transcription of the Record of Interview was not tainted by process error. The judge clearly communicated her approach and reasoning.
3. The head sentence imposed by the judge was not outside the range open to her.
[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.
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Details
AGLC
Ryle v The King [2025] SASCA 47
Case
[2025] SASCA 47
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by the appellant against his conviction and sentence. The appellant had been convicted of a number of offences, including child sexual offences, arising from his online interactions with a 15-year-old complainant. The appeal was heard by Kourakis CJ, Bleby and David JJ.
The legal issues before the court were whether the sentence imposed was manifestly excessive, and whether the sentencing judge had erred in her approach to determining the appellant's knowledge of the complainant's age. The appellant had engaged in sexualised conversations with the complainant over a period of approximately two weeks, during which he procured her to submit to sexual activity.
The court considered the principles of statutory interpretation, emphasising the importance of considering the whole of the Act and adopting a purposive approach. In relation to the sentence appeal, the court reviewed the grounds of interference, including whether a sentence was manifestly excessive or inadequate. The court ultimately granted permission to appeal on both grounds concerning the sentence but dismissed the appeal on each ground. The appeal against conviction was also dismissed.
Orders
Orders of the court
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Background
Background to the litigation
Two issues arise on the sentence appeal. Ground 1 complains that the sentence imposed was manifestly excessive. Ground 2 complains that the sentencing judge erred in her approach to the question of the appellant’s knowledge of the complainant’s age. Background The appellant first contacted the complainant via Facebook Messenger on 14 November 2022. He was 47 years old. The complainant was 15. The complainant was in the care of the State. She resided in supported accommodation with carers and had been in contact with the youth criminal justice system. The appellant and complainant conversed online, via Facebook Messenger, over about two weeks. During these conversations, the appellant engaged in sexualised conversations with the complainant and, in doing so, procured her to submit to sexual activity. Two police officers, Constable Baker and Senior Constable Kassebaum, gave evidence that they located the complainant in Allenby Gardens on 16 November 2022, and then in Morphett Vale on 27 November 2022, in response to two separate missing persons reports. On 27 November 2022, Kassebaum located the complainant using data from the home detention bracelet the complainant was wearing at the time. Kassebaum and his colleague transported the complainant back to her home address. Kassebaum’s colleague located two plastic resealable bags containing suspected methamphetamine and cannabis. The complainant gave Kassebaum permission to look through her mobile phone. Kassebaum observed messages exchanged on the Facebook Messenger application between the complainant and a Facebook user ‘Mark Green’ from 14 November 2022 to 27 November 2022. Kassebaum took photographs of the messages. The messages included the appellant repeatedly asking whether the complainant was ‘keen to fuck’ and requests for ‘sexy pictures’. There was discussion about the provision of drugs and cigarettes in exchange for engaging in sexual activity. Another police officer, Detective Brown, investigated an occurrence report in relation to the complainant on 28 November 2022. She had previously met with the complainant in connection with missing persons reports and guardianship orders. Brown received, as part of her investigations, a bundle of photographs depicting the messages obtained by Kassebaum. Brown made several inquiries to identify the user ‘Mark Green’ and obtained two Facebook profile images. One of these images partially depicted a motor vehicle registration. Further inquiries revealed the appellant to be the owner of the motor vehicle. Detective Brown and Detective Leary attended at the appellant’s residence on 29 November 2022. Brown observed a motor vehicle, similar to that depicted in the Facebook profile image, parked in the carport. The appellant was present. He provided Brown with his mobile phone. A preliminary search of the device revealed the Facebook profile ‘Mark Green’ to be installed on it. All communications except for one thread had been deleted from the Facebook Messenger application. Leary gave evidence that he conducted a review of the appellant’s mobile phone. He located photographs within the device’s image gallery application identical to those uploaded to the Facebook profile of ‘Mark Green’.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
We grant permission to appeal on Ground 1 but dismiss this ground also.Conclusion We dismiss the appeal against conviction. We grant permission to appeal on both grounds of appeal against sentence but dismiss that appeal also.