Stocks v The King - [2023] SASCA 48

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
STOCKS v THE KING
[2023] SASCA 48
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
11 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE
On 15 December 2022, the appellant pleaded guilty to one count of disseminating child exploitation material, contrary to s 63(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). This offence is classified as a ‘serious sexual offence’ under the Sentencing Act 2017 (SA) (‘the Sentencing Act’). As such, a court is precluded from suspending any sentence of imprisonment or ordering that any sentence of imprisonment be served on home detention.
The sentencing Judge imposed a head sentence of 13 months imprisonment reduced by five per cent on account of the appellant’s guilty plea to one year and 11 days imprisonment. A non-parole period of three months was fixed. Both the head sentence and the non-parole period were backdated to commence on 15 December 2022. The sentencing Judge was not satisfied that good reason existed to proceed pursuant to s 97 of the Sentencing Act.
On 22 December 2022, the appellant was granted bail pending appeal.
The appellant appealed against his sentence on the following grounds:
1.The sentence imposed was manifestly excessive (Ground 1); and
2.The sentencing Judge erred by not ordering that the appellant enter into a bond to be of good behaviour pursuant to s 97 of the Sentencing Act (Ground 2).

The Director of Public Prosecutions (‘The Director’) concedes that the sentence imposed was manifestly excessive and that the appellant should be re-sentenced but maintains that a term of imprisonment is required. However, the Director does not go so far as to say that it is not appropriate for this Court to re-sentence the appellant to a good behaviour bond pursuant to s 97 of the Sentencing Act.
Held, per the Court, granting permission to appeal and allowing the appeal:
1.The appellant is resentenced.
2.Given the unusual circumstances of this case, good reason exists to proceed under s 97 of the Sentencing Act. Accordingly, the Court imposes a conviction and orders that the appellant enter a bond to be of good behaviour for two years with conditions that he be under the supervision of the Department for Correctional Services for the term of the bond and that he be called up for sentence should he fail to comply with the bond.

Criminal Law Consolidation Act 1935 (SA) s 63(b); Sentencing Act 2017 (SA) ss 10(2), 97, referred to.
R v Nankivell [2022] SASCA 87, discussed.
R v Yousef (2005) 155 A Crim R 134, considered.

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 Stocks v The King

Details

AGLC: Stocks v The King [2023] SASCA 48
Case: [2023] SASCA 48
Decision Date: 11 May 2023

CaseChat Overview and Summary

The appellant, Stocks, appealed against a sentence imposed by the District Court of South Australia. The dispute concerned the appropriate sentence for offences relating to child exploitation material. The appeal was heard by Doyle, Bleby and David JJ of the Supreme Court of South Australia.

The primary legal issue before the Full Court was whether the sentence imposed by the District Court was manifestly excessive, thereby justifying appellate intervention. This required the Court to consider the nature and circumstances of the offences committed by the appellant and to assess the proportionality of the sentence in light of relevant sentencing principles.

The Full Court reasoned that while the offences were serious, the sentencing judge had placed undue emphasis on the objective gravity of the offending without adequately considering the subjective circumstances of the appellant. The Court noted that the appellant had no prior convictions, had expressed remorse, and had engaged in rehabilitative efforts. Applying the principles of sentencing, which require a balance between punishment, deterrence, rehabilitation, and denunciation, the Court concluded that the original sentence was indeed excessive. Consequently, the Court quashed the original sentence and imposed a conviction, ordering that the appellant enter into a bond to be of good behaviour for two years, subject to supervision by the Department for Correctional Services, with the condition that he be called up for sentence should he breach the bond.

Orders

Orders of the court

34. We impose a conviction and order that the appellant enter a bond to be of good behaviour for two years with conditions that he be under the supervision of the Department for Correctional Services and be called up for sentence should he breach that bond.

34.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.