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

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.
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.
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.
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…

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 STUBBS (a pseudonym) v The QUEEN

Details

AGLC: STUBBS (a pseudonym) v The QUEEN [2022] SASCA 1
Case: [2022] SASCA 1
Decision Date: 22 December 2021

CaseChat Overview and Summary

The applicant, identified by pseudonym STUBBS, appealed against a sentence imposed by a judge of the Supreme Court of Queensland. The dispute concerned the appropriate sentence for offences relating to child exploitation material.

The Court was required to determine whether the sentencing judge erred in refusing to grant partial concurrency of sentences for the two sets of offending identified by the applicant, and whether the final sentence imposed was manifestly excessive.

The Court reasoned that a sentencing judge is not obliged to make an allowance for partial concurrency of sentences. It found no reasonable basis to impugn the final sentence, concluding that its total length fell well within the sentencing judge's discretion.

Permission to appeal was refused.

Orders

Orders of the court

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.

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

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