STUBBS (a pseudonym) v The QUEEN

[2022] SASCA 1

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

STUBBS (a pseudonym) v THE QUEEN

[2022] SASCA 1

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Justice Doyle and the Honourable Justice Bleby)

22 December 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE

Application for permission to appeal against sentence.

The applicant pleaded guilty to nine offences relating to sexual exploitation of children. He was sentenced to 11 years, three months and seven days’ imprisonment, with a non-parole period of eight years, 11 months and two days.

The applicant complains that the trial judge erred in not allowing for some concurrency between sentences for what he described as two ‘sets’ of offending, and that the principle of totality required a reduction in the overall sentence.

Held (by the Court), refusing permission to appeal:

1.  The judge was not obliged to make an allowance of partial concurrency in respect of the two sets of offending as described by the applicant.  There is no reasonable basis for impugning the final sentence, the total length of which was well within the judge’s discretion.

Criminal Law Consolidation Act 1936 (SA) ss 49,63, 63A, 63B, referred to.
R v Snodgrass [2021] SASCFC 20, considered.

STUBBS (a pseudonym) v THE QUEEN
[2022] SASCA 1

Court of Appeal – Criminal:    Doyle and Bleby JJA

1. THE COURT (ex tempore):     This is an application for permission to appeal against sentence. On 28 September 2021, a District Court judge sentenced the applicant, on his plea of guilty, to nine offences relating to the sexual exploitation of children. The total head sentence imposed was 11 years, three months and seven days’ imprisonment with a non-parole period of eight years, 11 months and two days. The sentence was directed to commence on 1 June 2020.

2. The essential nature of the offending was that in 2019, the applicant engaged in communications with two women, in order to make their daughters amenable to sexual activity with him. The applicant believed one of the women to have two daughters, aged nine and 12. The person with whom he was communicating was, in fact, an undercover police operative. The applicant went so far as to meet with the purported mother, and arranged to meet her daughter, before he was arrested. In the course of their communications, he sent and produced child exploitation material.

3. The other woman with whom the applicant communicated was his girlfriend at the time, who had a daughter, M, aged five to six. He succeeded in procuring this child for sexual activity. The mother permitted him to abuse her own daughter sexually.

4. The circumstances of the offending the subject of the charges were as follows:

   ·Count 1 – aggravated making a communication with the intention of procuring a child to engage in sexual activity, contrary to s 63B of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (maximum penalty of 12 years’ imprisonment). The applicant and M’s mother discussed, in graphic detail, how the applicant could sexually abuse M.

   ·Counts 2 and 3 – making a communication with the intention of procuring a child to engage in sexual activity, contrary s 63B of the CLCA (maximum penalty of 10 years’ imprisonment for each count). The applicant communicated to the undercover operative his intention to commit sexual acts against her two daughters, whom he believed to be aged nine and 12. This included arranging a meeting with the operative.

   ·Counts 4, 5 and 6 – aggravated disseminating child exploitation material, contrary to s 63 of the CLCA (maximum penalty of 12 years’ imprisonment for each count). In November 2019, the applicant sent the undercover operative videos showing the sexual abuse of children. The essential subject matter of the videos is set out in the sentencing remarks. The accompanying communications to the undercover operative demonstrated that the applicant found the videos to be sexually gratifying.

   ·Count 7 – aggravated producing child exploitation, contrary to s 63 of the CLCA (maximum penalty of 12 years’ imprisonment). During communications with the undercover operative, the applicant ‘described a blindfold game and a tasting game’ involving M.

   ·Count 8 – aggravated possession of child exploitation material, contrary to s 63A of the CLCA (maximum penalty of 7 years’ imprisonment). The applicant was in possession of 11 child exploitation images of M, including pictures of her in the bath.

   ·Count 9 – unlawful sexual intercourse, contrary to s 49 of CLCA (maximum penalty of life imprisonment). The applicant encouraged M to perform an act of oral sex on him in the company of M’s mother. M was five or six years old at the time.

5. The judge sentenced the applicant as follows:

   ·In relation to Count 1, the judge imposed a sentence of two years, 11 months and 22 days’ imprisonment (reduced by 15 per cent from three years and six months on account of his guilty plea);

   ·In relation to Counts 2 and 3, the judge imposed a sentence of two years, six months and 19 days’ imprisonment (reduced by 15 per cent from three years on account of his guilty plea);

   ·In relation to Count 4, the judge imposed a sentence of eight months and 16 days’ imprisonment (reduced by 15 per cent from 10 months on account of his guilty plea);

   ·In relation to Count 5, the judge imposed a sentence of eight months and 16 days’ imprisonment (reduced by 15 per cent from 10 months on account of his guilty plea);

   ·In relation to Count 6, the judge imposed a sentence of one year, 10 months and 29 days’ imprisonment (reduced by 15 per cent from two years and three months on account of his guilty plea);

   ·In relation to Count 7, the judge imposed a sentence of four months and eight days’ imprisonment (reduced by 15 per cent from five months on account of his guilty plea);

   ·In relation to Count 8, the judge imposed a sentence of four months and eight days’ imprisonment (reduced by 15 per cent from five months on account of his guilty plea);

   ·In relation to Count 9, the judge imposed a sentence of three years, four months and 25 days’ imprisonment (reduced by 15 percent from four years on account of his guilty plea).

6. The judge allowed for partial concurrency in relation to Counts 2, 3, 4, 5, 6 and 7, reducing the total sentence on those counts from six years, two months and 28 days, to five years’ imprisonment. This was on account of Counts 4, 5, 6 and 7 having occurred during the applicant’s communications with the undercover operative which are subject of Counts 2 and 3.

7. The applicant does not complain about the individual starting points for the sentences. Rather, he submits that the judge erred in not allowing for some concurrency between the sentences for what he described as two sets of offending. To this end, he divides the offending between that concerning the communications with the undercover police officer on the one hand and the offending against M on the other. He submits that the principle of totality required a reduction in the overall sentence or by partial concurrency between the two sets of offending so described.

8. Prior to giving the applicant credit for time in custody and for a period on home detention, the judge, having identified the sentences for the individual counts and making allowance of partial concurrency for Counts 2 to 7, said the following:

   I need to stand back and consider whether the sentence is disproportionate to the total criminality of your offending and whether it is crushing to you.  I have done that.  I do not think it is.  As I have said, your offending was depraved.  The community needs to be protected from a predator like you.  Whilst I accept you are sorry and ashamed, you have shown little insight.

9. It is manifestly apparent that the judge considered the totality principle.

10. In R v Snodgrass[1] the Court of Criminal Appeal said:

    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.” 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.

    (Footnote omitted)

    [1]      R v Snodgrass [2021] SASCFC 20 at [51].

11. The judge was not obliged to make an allowance of partial concurrency in respect of the two sets of offending as the applicant describes them. That was simply one option available in crafting the total sentence. In a complex sentencing exercise such as this, and in circumstances where the judge expressly considered the application of the principle of totality, the question necessarily devolves to whether the sentence was manifestly excessive.

12. The failure to allow some degree of concurrency in the manner for which the applicant contends might, in some circumstances, underpin a complaint of manifest excess.  Here, while the offending may be described, in its totality, as directed to gratifying the applicant’s deviant sexual desires, the offences themselves comprised separate incursions. Principle did not demand some degree of concurrency between the two described ‘sets’ of offending. More fundamentally, there is no reasonable basis for impugning the final sentence, the total length of which was well within the judge’s discretion.

13. The application for permission to appeal against sentence is refused.