Stropin v The Queen - [2021] SASCA 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
STROPIN v THE QUEEN
[2021] SASCA 50
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
3 June 2021

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - AFTER COMMITTAL FOR SENTENCE ON PLEA OF GUILTY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
Appeal against conviction.
The applicant was charged with two counts of possessing child exploitation material contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA). The offending related to material that was located on the applicant’s mobile phone while he was on parole.
The applicant pleaded guilty to both counts and was committed for sentence in the District Court.
Shortly thereafter, he sought to withdraw his guilty pleas pursuant to s 119 of the Criminal Procedure Act 1929 (SA). The basis of the application was that, having viewed the material, the applicant’s solicitor considered that the material may not satisfy the charges.
The application was heard before a District Court Judge. The Judge viewed the material and concluded that in relation to at least some of the material, there was no arguable defence to the charges. The application was refused and the applicant was convicted.
The applicant appeals against his conviction on the basis that the Judge erred in refusing permission for him to change his plea from guilty to not guilty.
Held (by the Court), granting permission to appeal and dismissing the appeal:
1. The Judge applied the correct test in determining whether there was an arguable defence.
2. This was the exercise of a wide discretion and the applicant has not pointed to any material error, in fact or law, to show that the exercise of the discretion has miscarried.
Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a); Criminal Procedure Act 1921 (SA) s 119; Sentencing Act 2017 (SA) s 40(3)(a), referred to.
R v Pugh [2005] SASC 427; R v Brooks (2007) 96 SASR 478; R v Liberti (1991) 55 A Crim R 120; Meissner v The Queen (1995) 184 CLR 132; R v Clayton (1984) 35 SASR 232; Hinton v O’Dea (1977) 16 SASR 234; R v Stropin [2020] SADC 57; R v HJS [2020] SASC 142; House v The King (1936) 55 CLR 499; Jamieson v The Queen [2017] VSCA 140; R v Lobban (2001) 80 SASR 550, considered.

STROPIN v THE QUEEN
[2021] SASCA 50

Court of Appeal - Criminal: Kelly P, Doyle and Bleby JJA
THE COURT:
Introduction

The applicant, Steven Simon Stropin, was charged with two counts of possessing child exploitation material (‘CEM’) contrary to s 63A(1)(a) of the Criminal Law Consolidation Act

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 Stropin v The Queen

Details

AGLC: Stropin v The Queen [2021] SASCA 50
Case: [2021] SASCA 50
Decision Date: 3 June 2021

CaseChat Overview and Summary

The applicant, Stropin, appealed to the Court against a decision made by a Judge concerning his plea of guilty to offences related to child exploitation material. The central dispute revolved around Stropin's attempt to withdraw his guilty plea after being committed for sentence.

The Court was required to determine whether the Judge had applied the correct legal test when assessing whether Stropin had an arguable defence to the charges, which would be a prerequisite for allowing the withdrawal of his guilty plea. Furthermore, the Court had to consider whether the Judge's exercise of discretion in refusing to allow the withdrawal of the plea was affected by any material error of fact or law.

The Court held that the Judge had correctly applied the relevant test for determining an arguable defence. It found that the Judge's decision was an exercise of a wide discretion and that Stropin had failed to demonstrate any material error, either in fact or law, that would indicate the discretion had miscarried. Consequently, permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

Held (by the Court), granting permission to appeal and dismissing the appeal:

1. The Judge applied the correct test in determining whether there was an arguable defence.

2. This was the exercise of a wide discretion and the applicant has not pointed to any material error, in fact or law, to show that the exercise of the discretion has miscarried.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In these circumstances, we consider it unsurprising that the Judge did not focus on that in his ruling. Conclusion We grant permission to appeal. However, as this was the exercise of a wide discretion and as the applicant has not pointed to any material error, in fact or law, to show that the exercise of the discretion has miscarried, we dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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