The Queen v Perrey; the Queen v Perrey - [2022] SASCA 51

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
THE QUEEN v PERREY; THE QUEEN v PERREY
[2022] SASCA 51
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Lovell)
14 June 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
The respondent pleaded guilty to seven Commonwealth child sex offences, contrary to the Criminal Code Act 1995 (Cth) and four State child sex offences, contrary to the Criminal Law Consolidation Act 1935 (SA).
On 4 March 2022, the respondent was sentenced to five years imprisonment for the Commonwealth and State offending, both taking into account the respondent’s guilty pleas. A single non-parole period of two years and six months’ imprisonment was fixed.
By Notices of Appeals dated 24 March 2022, the Commonwealth and State Directors sought permission to appeal against sentence on the grounds that the sentencing judge had erred in calculating the total length of the Commonwealth sentence, in applying a 35 per cent reduction on count 2 and in fixing a single non-parole period for the Commonwealth and State offending.
The sentencing judge appeared the accept that the errors described in the Notices of Appeals had been made and proposed to correct the errors and resentence the respondent utilising ss 19AH and 19AHA of the Crimes Act 1914 (Cth) and s 20 of the Sentencing Act 2017 (SA). It was the Commonwealth Director’s position that these errors should be rectified by the Court of Appeal.
Held (by the Court) granting permission to appeal and allowing the appeals:
1.The sentences of imprisonment imposed, and the non-parole period fixed, on 4 March 2022 are set aside.
2.The respondent is re-sentenced to a total effective sentence of four years, eight months and 17 days’ imprisonment commencing on 14 August 2020 and ending on 30 April 2025.
3.The non-parole period for the State offending will be fixed at 13 months. The non-parole period for the Commonwealth offending will be fixed at 17 months, commencing at the expiration of the State non-parole period on 14 September 2021.

Criminal Code Act 1995 (Cth) ss 474.19(1), 474.22(1), 474.22A(1), 474.26(1); Criminal Law Consolidation Act 1935 (SA) ss 63, 63A; Crimes Act 1914 (Cth) ss 19(3)(d), 19AB(1), 19AH, 19AHA, 19AJ; Sentencing Act 2017 (SA) s 20, 40(8), 47(1)(a), 47(5)(a)(i), referred to.
Adams v The State of Western Australia [2014] WASCA 191; Burrell v The Queen (2008) 238 CLR 218; Jenkins v R [2022] VSCA 1; R v Bahrami (2020) 137 SASR 327; R v Bechara [2022] SASCA 37; R v Brooks & Childs (2006) 95 SASR 369; R v Hudson [2016] SASCFC 60; R v Hunt [2018] SASCFC 137; R v Kuci [2016] SASCFC 136; R v Singh (2018) 132 SASR 1, considered.

THE QUEEN v PERREY; THE QUEEN v PERREY
[2022] SASCA…

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.

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Details

Case: [2022] SASCA 51
Decision Date: 14 June 2022

CaseChat Overview and Summary

The case of *The Queen v Perrey* involved appeals by the Crown against sentences imposed on the respondent. The appeals concerned the respondent's convictions for offences relating to child pornography and child exploitation material.

The central legal issue before the court was whether the sentences originally imposed were manifestly inadequate, thereby justifying the Crown's appeal and the court's intervention to re-sentence the respondent.

The court granted permission to appeal, finding that the original sentences were inappropriate. In exercising its discretion, the court set aside the sentences and non-parole periods previously fixed. The court re-sentenced the respondent to a total effective sentence of four years, eight months, and 17 days imprisonment, commencing on 14 August 2020 and ending on 30 April 2025. A non-parole period of 13 months was fixed for the State offending, and a non-parole period of 17 months was fixed for the Commonwealth offending, with specific commencement and end dates for each.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the result, the total effective sentence of imprisonment for all offending will be four years, eight months and 17 days, commencing on 14 August 2020 and ending on 30 April 2025. The total effective non-parole period will be two years, six months, commencing on 14 August 2020 and ending on 12 February 2023. Conclusion In our view, it is appropriate to grant permission to appeal, allow the appeals and re-sentence the respondent as indicated. The order of the Court will be that the sentences of imprisonment imposed, and the non-parole period fixed, on 4 March 2022 are set aside. In the exercise of our discretion, the respondent is re-sentenced to a total effective sentence of four years, eight months and 17 days commencing on 14 August 2020 and ending on 30 April 2025. The non-parole period for the State offending will be fixed at 13 months, commencing on 14 August 2020 and ending on 13 September 2021. The non-parole period for the Commonwealth offending will be fixed at 17 months, commencing on 14 September 2021 and ending on 13 February 2023.

Ratio Decidendi

Legal Principle Established

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