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 51

Court of Appeal – Criminal:  Livesey P and Lovell JA

THE COURT (ex tempore):

Introduction

1. The Court has before it two appeals.  One has been commenced by the Commonwealth Director of Public Prosecutions and the second has been commenced by the South Australian Director of Public Prosecutions.[1] 

   [1]     However, the Commonwealth DPP has conduct of both appeals.

2. These appeals are brought against sentences imposed by a District Court judge on 4 March 2022 for seven Commonwealth child sex offences, contrary to the Criminal Code Act 1995 (Cth) (the Code) and four State child sex offences, contrary to the Criminal Law Consolidation Act 1935 (SA) (the CLCA).  These offences were charged on the same Information.[2]

   [2]     The Commonwealth DPP entered a nolle prosequi against count 6 and 10 as part of a plea negotiation. 

3. There is no suggestion that the sentences imposed on 4 March 2022 are, whether individually or in combination, manifestly inadequate.  Rather, the appeal targets various errors made by the judge when passing sentence.  At the callover before Doyle JA on 9 May 2022 counsel for the respondent indicated that, as the correction of these errors would have no material effect on the sentence, permission to appeal “would obviously be conceded”.  That remains the attitude of the respondent.

   The sentences imposed

4. The sentencing judge imposed the following sentences in respect of each offence:

Ct	Offence	Sentence	Max Penalty
1	Use carriage service to access child pornography material – s474.19(1) Code	4 months, 16 days imprisonment	15 years imprisonment
2	Produce child exploitation material – s63 CLCA	11 months, 22 days imprisonment	12 years imprisonment
3	Use carriage service to access child abuse material (“CAM”) – s474.22(1) Code	1 year, 8 months, 8 days imprisonment	15 years imprisonment
4	Use carriage service to procure a person under 16 years for sexual activity s474.26(1) Code	5 months, 8 days imprisonment	15 years imprisonment
5	Use carriage service to procure a person under 16 years for sexual activity s474.26(1) Code	5 months, 8 days imprisonment	15 years imprisonment
7	Use carriage service to procure a person under 16 years for sexual activity s474.26(1) Code	5 months, 8 days imprisonment	15 years imprisonment
8	Use carriage service to access CAM s474.22(1) Code	3 months imprisonment	15 years imprisonment
9	Possess or control CAM, obtained or accessed using a carriage service – s474.22A(1) Code	1 year, 8 months, 8 days imprisonment (To be concurrent with sentences on counts 1, 3 and 8)	15 years imprisonment
11	Aggravated possess child exploitation material – s63A CLCA	7 months, 25 days imprisonment (To be concurrent with sentence on count 2)	7 years imprisonment
12	Possess child exploitation material – s63A CLCA	(Aggregate sentence) 7 months, 25 days imprisonment	5 years imprisonment
13	Aggravated possess child exploitation material – s63A CLCA		7 years imprisonment
Total Effective Sentence (Commonwealth): To commence on 14 August 2020		3 years, 7 months, and 18 days imprisonment
Total Effective Sentence (State): To commence 3 years, 4 months, and 14 days after the commencement of the Commonwealth sentence		1 year, 7 months and 17 days imprisonment
Total Effective Sentence:		5 years imprisonment
Non-Parole Period:		2 years and 6 months imprisonment

The grounds of appeal – the correction of errors

1. The separate Notices of Appeal essentially outline three grounds of appeal:

   1.The Commonwealth Director contends that the sentencing judge erred when calculating the total length of the Commonwealth sentence.

   2.The South Australian Director contends that the sentencing judge erred in applying a 35 per cent reduction on count 2 in respect of the respondent’s guilty plea. 

   3.Both Directors contend that the sentencing judge erred when fixing a single non-parole period in relation to the Commonwealth and State sentences. 

2. After the Notices of Appeal were filed, the sentencing judge called the matter back on. She appeared to accept that the errors described in the Notices of Appeal had been made. She indicated how she proposed to rectify the errors and re-sentence the respondent, utilising ss 19AH and 19AHA of the Crimes Act 1914 (Cth) (the Crimes Act) and s 20 of the Sentencing Act 2017 (SA) (the Sentencing Act). 

3. The sentencing judge was advised by counsel for the Commonwealth Director that these provisions could not be used and that the most appropriate method of rectifying the errors was by way of appeal to the Court of Appeal. 

   The circumstances of the offending

4. The respondent’s offending was detected following the execution of a search warrant by Australian Federal Police at the respondent’s home.  A number of electronic devices were located and seized.  An inspection disclosed that the respondent had used the ‘LiveMe’ application, a live streaming platform, to access child abuse material by viewing broadcasts of female children and to communicate with female children with the intention of procuring sexual activity. 

5. Child abuse material which had been accessed via LiveMe was also found in the respondent’s possession.  In addition, the respondent had used a hand-held camera to produce child exploitation material by covertly filming children from his bedroom.  This material was retained by the respondent.  Finally, the respondent was found to be in possession of child abuse material located on various of his electronic devices. 

   The nature of the errors made by the sentencing judge

6. It is submitted that the various errors could have been addressed immediately following sentence by recourse to the Court’s inherent powers, but not after the sentencing judge signed the Report of Prisoners Tried.[3] 

   [3]     R v Brooks & Childs (2006) 95 SASR 369, [34] and [39] (Bleby J).

7. As it happened, the various errors were not detected until around a week after sentence was imposed. 

8. The Director concedes that the first error, made when calculating the total length of the Commonwealth sentence, could have been rectified using s 19AHA of the Crimes Act.  The total sentence of three years, seven months and 18 days did not correspond with the judge’s sentencing remarks, which referred to three years, eight months and 18 days. That is precisely the kind of technical error which is amenable to cure by recourse to s 19AHA of the Crimes Act. To cure this kind of error does not require reconsideration of the substance of the result, nor does it require any fresh exercise of sentencing discretion.[4]

   [4]     Burrell v The Queen (2008) 238 CLR 218, [21] (Gummow ACJ, Kirby, Hayne, Heydon, Crennan and Kiefel JJ).

9. As for the second error, the sentencing judge erroneously applied a 35 per cent sentencing reduction on count 2, overlooking that the respondent was only entitled to a 25 per cent reduction because the charge was a “serious indictable offence” within the meaning of s 40(8) of the Sentencing Act. 

10. However, the Commonwealth Director contends that this second error, and the error associated with imposing one non-parole period for Commonwealth and State offences, could not have been corrected by the sentencing judge by recourse to ss 19AH or 19AHA of the Crimes Act, or by recourse to its State cognate, s 20 of the Sentencing Act. In any event, as these errors are to be addressed by this Court on appeal, it is convenient that the first error be addressed by this Court because s 19AHA can be utilised on appeal,[5] notwithstanding that it is generally preferable that errors of this kind be addressed by the sentencing court.[6]

    [5]     R v Hudson [2016] SASCFC 60, [25] (Nicholson J, with whom Parker and Lovell JJ agreed).

    [6]     Even after an appeal has commenced, Jenkins v R [2022] VSCA 1, [26] (Whelan JA); and in relation to s 20, see R v Bechara [2022] SASCA 37, [19]-[20] (Kourakis CJ, Lovell and Doyle JJA), citing R v Kuci [2016] SASCFC 136, [6] (Kourakis CJ, with whom Blue and Lovell JJ agreed) and R v Hunt [2018] SASCFC 137, [2] (Kelly J).

11. It is first convenient to consider whether these errors are or are not amenable to correction using the so called “slip rule”, and so it is necessary to consider ss 19AH and 19AHA of the Crimes Act and s 20 of the Sentencing Act. 

12. Where a court “fails to fix, or properly to fix, a non-parole period”, s 19AH of the Crimes Act requires the court to, on the application of the Attorney-General, the Director of Public Prosecutions or the person to whom the sentence applies, “set aside any non-parole period or recognizance release order that was not properly fixed or made and fix a non-parole period or make a recognizance release order under this Act”.[7]  The application must be made and dealt with by the “court at first instance”.[8] Whether or not the sentencing judge’s error in setting a single non-parole period is amenable to correction by s 19AH, this Court cannot make use of s 19AH.

    [7]     Crimes Act 1914 (Cth) s 19AH(1).

    [8]     Crimes Act 1914 (Cth) s 19AH(3); Adams v The State of Western Australia [2014] WASCA 191, [171] (Mazza JA, with whom Newnes JA agreed).

13. Turning then to s 19AHA of the Crimes Act, this provision empowers a court, on its own initiative, to amend a sentencing order that:

    (a)     reflects an error of a technical nature made by the court; or

    (b)    has a defect of form; or

    (c)    contains an ambiguity.

14. The ‘Note’ to the section explains that a “technical” error for the purposes of this provision includes “a clerical mistake, an accidental slip or omission, material miscalculation of figures or a material mistake in the description of a person, thing or matter”. 

15. In Burrell v R, the High Court considered the court’s power to correct the record so that it truly represents what the court pronounced or intended to pronounce as its order, finding that:[9]

    The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directions attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.

    [9]     Burrell v R (2008) 238 CLR 218, [21] (Gummow ACJ, Kirby, Hayne, Heydon, Crennan and Kiefel JJ).

16. Turning now to s 20 of the Sentencing Act:

    20—Rectification of sentencing errors

    (1)     A court that imposes, or purports to impose, a sentence on a defendant, or a court of coordinate jurisdiction, may, on its own initiative or on application by the DPP or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.

    (2)     The DPP and the defendant are both parties to proceedings under this section.

17. The authorities demonstrate that s 20 is available where the intention of the sentencing judge can be confidently ascertained and the nature of the identified error is technical.[10]  In addition, it has been held that this provision is not available where its application requires a fresh exercise of the sentencing discretion.[11]

    [10]   R v Singh (2018) 132 SASR 1, [8] (Blue J); R v Bechara [2022] SASCA 37, [16]-[17] (Kourakis CJ, Lovell and Doyle JJA).

    [11]   R v Hunt [2018] SASCFC 137, [22]-[35] (Stanley J), [90]-[98] (Hinton J)

18. The first error concerned the calculation of the length of sentence and is clearly the kind of error which is often amenable to correction under s 19AHA of the Crimes Act or s 20 of the Sentencing Act.[12]

    [12] The note to s 19AHA of the Crimes Act 1914 (Cth) explicitly provides that a “material miscalculation of figures” is a “technical error” falling within the ambit of s 19AHA(1)(a). Under s 20, see R v Bechara [2022] SASCA 37 (Kourakis CJ, Lovell and Doyle JJA).

19. The second error represents an error of law in the application of s 40 of the Sentencing Act.  Whilst in some cases it may be difficult to regard this kind of error as “technical”, that may be the appropriate conclusion where, for example, the sentencing remarks show that a simple slip has been made.  For example, in R v Hunt, the Court of Criminal Appeal applied s 20 where the sentencing judge erred in calculating the time the offender spent in custody, recognising that the judge clearly intended that the offender be given full credit for time spent in custody.[13]

    [13]   R v Hunt [2018] SASCFC 137, [22]-[35] (Stanley J), [90]-[98] (Hinton J); R v Singh (2018) 132 SASR 1, [8] (Blue J).

20. The sentencing remarks for what was a complex sentencing process in this case do not clearly state that it was intended to give the respondent the benefit of the maximum available reductions following pleas of guilty. The only clear sign of the judge’s intention is contained in the comments she made in the course of submissions after the appeal notices were filed. Her Honour effectively said that it was her intention to give the respondent the benefit of the maximum available reductions. There is no reason to doubt what the sentencing judge said.  In addition, whilst whether to give the maximum available reduction forms part of the exercise of the sentencing discretion as to the imposition of sentence as a whole, the way in which the sentencing court exercised that aspect of the discretion is clear.[14] On balance, this was an error of law which did not fall outside the scope of s 20 of the Sentencing Act because the error was technical and the intention was clear, though thwarted by the erroneous transposition of the applicable percentage. 

    [14]   R v Bahrami (2020) 137 SASR 327, [120] (Livesey J).

21. On any view, however, even if the failures to fix separate non-parole periods for each of the Commonwealth and State sentences were errors of a technical nature, these errors of law cannot be cured without a fresh exercise of the sentencing discretion.[15] Neither s 19AHA nor s 20 can be used to correct these errors.

    [15]   R v Hunt [2018] SASCFC 137, [97] (Hinton J).

    Correcting the first two errors made by the sentencing judge

22. The slip made with respect to the total length of the Commonwealth sentence has been addressed.  The error made regarding the erroneous reduction of 35 per cent given in respect of count 2, requires that a 25 per cent reduction be applied, and so the former sentence of 11 months and 22 days would be increased to one year, one month and 16 days.  That would make the total sentence on the State offending one year, nine months and 11 days and the total sentence on the Commonwealth offending three years, seven months and 18 days.  The total sentence for all offending would be five years, four months and 29 days.[16] 

    [16] Section 19(3)(d) of the Crimes Act 1914 (Cth) requires the first Commonwealth sentence to commence immediately after the expiration of the State non-parole period, resulting in partial concurrency between the State and Commonwealth sentences. This is reflected in the difference between the total sentence for all offending and the total effective sentence of imprisonment.

    The third error made by the sentencing judge – two non-parole periods

23. The sentencing judge imposed a single non-parole period for all offending of two years and six months.  That was an error of law.[17]  Whilst the parties were agreed that this Court should intervene to effectively impose an overall non-parole period of two years and six months, how this might be done is not straight forward. 

    [17] See s 19AJ of the Crimes Act 1914 (Cth).

24. Put another way, given the stated intention by the sentencing judge to impose a non-parole period totalling two and a half years, the question is how this may be structured across the Commonwealth and State sentences. 

25. When undertaking this exercise, it is necessary to bear in mind that, where the head sentence exceeds three years’ imprisonment for federal offending, a non-parole period rather than a recognizance release order must be fixed.[18]  In addition, where a non-parole period must be fixed in relation to a sentence imposed for State offences, the first federal sentence must commence no later than immediately after the end of the State non-parole period.[19]  

    [18] See s 19AB(1) of the Crimes Act 1914 (Cth).

    [19] See s 19(3)(d) of the Crimes Act 1914 (Cth).

26. It is also necessary to bear in mind that, under the Sentencing Act, a sentencing court must fix a non-parole period when sentencing an offender to a term of imprisonment of 12 months or more.[20]

    [20] See ss 47(1)(a) and 47(5)(a)(i) of the Sentencing Act 2017 (SA).

1. It is convenient to commence with the State sentence generally adopting the individual sentences imposed by the judge.  That sentence is to commence on 14 August 2020.  If the appropriate reduction for the effect of the guilty plea on count 2 is made, that sentence of one year, one month and 16 days would commence on 14 August 2020 and end on 29 September 2021.  Thereafter, the sentence on count 11 of seven months and 25 days may be made concurrent with the sentence on count 2.  By contrast, the sentence of seven months and 25 days for counts 12 and 13 would commence on 30 September 2021 and end on 24 May 2022. 

2. That results in a total effective State sentence of one year, nine months and 11 days, covering the period 14 August 2020 to 24 May 2022.  A non-parole period of 13 months may be fixed, commencing on 14 August 2020 and ending on 13 September 2021. 

3. Turning now to the Commonwealth sentence, that must commence at the expiration of the non-parole period fixed for the State offending, being 14 September 2021. 

4. Again taking the sentences imposed by the judge for the Commonwealth offending, and ordering that they be served cumulatively, the sentence on count 1 of four months and 16 days will operate between 14 September 2021 and 29 January 2022.  The sentence on count 3 of one year, eight months and eight days will operate between 30 January 2022 and 7 October 2023.  The sentence on count 4 of five months and eight days will operate between 8 October 2023 and 15 March 2024.  The sentence on count 5 of five months and eight days will operate between 16 March and 23 August 2024.  The sentence on count 7 of five months and eight days will operate between 24 August 2024 and 31 January 2025.  The sentence on count 8 of three months will operate between 1 February 2025 and 30 April 2025.  The sentence on count 9 of one year, eight months and eight days is ordered to be served concurrently with the sentences imposed on counts 1, 3 and 8.

5. That results in a total effective sentence for the Commonwealth offending of three years, seven months and 17 days, spanning the period 14 September 2021 and 30 April 2025. 

6. It is necessary to fix a non-parole period in respect of the Commonwealth offending.  In order to preserve the stated intention of imposing a two year and six months non-parole period, the non-parole period for the Commonwealth offending should be 17 months, spanning the period 14 September 2021 and 13 February 2023.

7. 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

8. In our view, it is appropriate to grant permission to appeal, allow the appeals and re-sentence the respondent as indicated.

9. 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.

10. 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.

11. 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.