SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
SNODGRASS v THE QUEEN
[2021] SASCFC 20
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, the Honourable Justice Doyle and the Honourable Justice Hughes)
1 April 2021
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
The appellant seeks to appeal against his sentence and non-parole period on the basis that they were both manifestly excessive, insufficient concurrency had been applied between sentences, the principle of totality was inadequately considered, and the sentencing Judge erred by declining to exercise the discretion in s 54(2) of the Sentencing Act 2017.
The appellant had pleaded guilty to 147 counts of indecent filming of adults, 7 counts of indecent filming of minors, 50 counts of aggravated producing child exploitation material, 5 counts of aggravated possession of child exploitation material, 5 counts of possession of child exploitation materials, 1 count of aggravated indecent assault and 1 count of assault. The sentencing Judge imposed 9 separate sentences, one of which was to be served concurrently with another; the remainder to be served cumulatively. The total sentence imposed was 10 years, 3 months and 15 days’ imprisonment with a non-parole period of 8 years, 2 months and 18 days.
Held, per Hughes J (Peek and Doyle JJ agreeing) granting permission to appeal and dismissing the appeal:
1. No error was disclosed in the sentencing Judge’s approach of grouping charges based on the type of offending and the relevant sentencing discount available. It was open to the sentencing Judge to apply partial concurrency within the sentencing groups to achieve an appropriate sentence.
2. The sentencing Judge adequately considered the totality of the sentence and it could not be said that the sentence was so ‘crushing’ as to warrant a further reduction.
3. The sentence imposed was appropriately lengthy in light of the particular features of the offending particularly the gross breaches of trust in respect of patients, sexual partners and his daughters.
4. The sentencing Judge did not err in finding that the appellant’s personal circumstances were not exceptional so as to exclude him from the operation of the serious repeat offender provisions.
Sentencing Act 2017 (SA) s 32A, s 38(2ba), s 26, s 53, s 54, s 57; Criminal Law (Sentencing) Act 1988 (SA) s 10C, referred to.
R v Horstmann [2010] SASC 103; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; R v Cramp [2010] SASC 51; (2010) 106 SASR 304; R v E, AD [2005] SASC 332; (2005) 93 SASR 20; R v Turvey [2017] SASCFC 28; (2017) 127 SASR 425;
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- AGLC
- Snodgrass v The Queen [2021] SASCFC 20
- Case
- [2021] SASCFC 20
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court were whether the sentencing judge erred in their approach to grouping the charges, applying partial concurrency within those groups, and adequately considering the totality of the sentence. The court also had to determine if the sentence was manifestly excessive, and whether the appellant's personal circumstances were exceptional enough to preclude the application of serious repeat offender provisions.
The Full Court, in dismissing the appeal, held that the sentencing judge's method of grouping offences by type and applicable discounts was not erroneous. It was open to the judge to use partial concurrency to achieve an appropriate sentence, given the complexity of over 200 offences and victims, and the varying maximum penalties and discounts associated with different categories of offending. The court found that the sentencing judge had adequately considered the totality of the sentence, and it was not so "crushing" as to warrant further reduction. The sentence was deemed appropriately lengthy due to significant breaches of trust involving patients, sexual partners, and the appellant's daughters. Furthermore, the court found no error in the conclusion that the appellant's personal circumstances were not exceptional enough to exempt him from the serious repeat offender provisions.
Orders
Orders of the court
Held, per Hughes J (Peek and Doyle JJ agreeing) granting permission to appeal and dismissing the appeal:
1. No error was disclosed in the sentencing Judge’s approach of grouping charges based on the type of offending and the relevant sentencing discount available. It was open to the sentencing Judge to apply partial concurrency within the sentencing groups to achieve an appropriate sentence.
2. The sentencing Judge adequately considered the totality of the sentence and it could not be said that the sentence was so ‘crushing’ as to warrant a further reduction.
3. The sentence imposed was appropriately lengthy in light of the particular features of the offending particularly the gross breaches of trust in respect of patients, sexual partners and his daughters.
4. The sentencing Judge did not err in finding that the appellant’s personal circumstances were not exceptional so as to exclude him from the operation of the serious repeat offender provisions.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Director pointed to the ambivalence of the psychiatric evidence regarding the appellant’s prospects of rehabilitation and eschewed the proposition that the factors reflecting the appellant’s good character were required to have effect given to them by means of concurrency between the sentences as opposed to within the discrete consecutive sentences.Consideration – concurrency The sentencing Judge was faced with a complex task. There were over 200 offences and over 200 victims. The offence groups carried different maximum penalties from one another, and in some cases attracted different discounts. Some of the conduct gave rise to multiple different offences against the same victim on different dates. Some of the victims were adults and others were minors. Some but not all of the minors were under the age of 14 years. In more detail, it can be seen that, factually, there were six categories of offending: ·Indecent filming of adults, minors (between 16 and 17 years of age inclusive), and sexual partners, from 2010 onwards, at work, home, in the context of different relationships;·Production of child pornography in its aggravated form because it was in respect of a minor under the age of 16;·Possession of child exploitation material arising from the storing of what the appellant had produced by filming minors on his computers and other devices;-8 of these counts relate to victims who were filmed by the appellant or the subject of a produce child exploitation material count. The possession occurred on 4 devices. -4 were basic offences.-4 were aggravated because the child was under 14 whereupon the offence attracted a greater penalty.·Possession of downloaded items of child exploitation material (counts 4 and 192);-One was a basic offence, the other was aggravated.-These downloaded items were made up of 907 category 1 images, 2 category 1 videos.-Of the 907 images, 497 were aggravated by virtue of relating to a child under the age of 14.·Assault of the woman who discovered the hidden camera; and·Aggravated indecent assault in the filming of a client whilst the appellant massaged her during a consultation. Importantly, where a minor was the subject of a filming offence, if the child was under 15 then the offence was charged as aggravated produce child exploitation material and where the child was between the ages of 15 and 17 inclusive, the charge was indecent filming of a minor. In approaching the question of whether the manner in which the sentencing Judge dealt with concurrency, the appellate court is required to give “as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.”[10] The extent to which sentences ought to be made concurrent with one another is not amenable to precise articulation as there are numerous ways that a sentence, particularly a complex sentence such as this one, may be fashioned. In Attorney-General v Tichy,[11] Wells J said:[12]It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively… Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration. [10] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26] (Gummow, Callinan and Heydon JJ) cited with approval in McIntyre v The Queen [2020] SASCFC 101 at [73] (Doyle J).[11] (1982) 30 SASR 84.[12] Ibid 92-93.