Walsh v The King

[2024] SASCA 146

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

WALSH v THE KING

[2024] SASCA 146

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

19 December 2024

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

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

This is an application for permission to appeal against sentence.

The appellant pleaded guilty to 230 child sex communication and child exploitation material charges and was sentenced to imprisonment for 22 years, together with a non-parole period of 17 years and 8 months.

The appellant’s offending was sustained and extremely serious. Over the course of over two and a half years, concluding with the appellant’s arrest, the appellant pretended to be a boy of 15 years and exchanged thousands of electronic communications with 15 female children aged between 10 and 16 years, procuring sexually explicit images and videos from them. In addition, the appellant was found to be in possession of other child exploitation material depicting unidentified victims.

The first Information was laid on 6 May 2021, alleging two counts of possessing child exploitation material contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), followed by a second Information dated 25 August 2021 which contained 45 counts of offending relating to the production of child exploitation material and making communications for a prurient purpose with the intention of making a child amenable to sexual activity, contrary to the CLCA. The third and final Information containing all 230 charges, was laid on 31 May 2022.

The appellant raised six appeal grounds, broadly:

1.The sentencing judge incorrectly equated the criteria necessary for a mental impairment “defence” with that of a mitigating factor based on a psychological impairment such as autism.

2.The sentencing judge erred in finding that the appellant continued to communicate with two of the victims after his initial arrest.

3.The sentencing judge failed to adhere to s 40(2) of the Sentencing Act 2017 (SA) (the Sentencing Act) and, thereby, failed to give the appellant the full available reduction in respect of all pleas on each count of the third Information.

4.The sentencing judge erred in failing to apply s 40(5)(e) of the Sentencing Act and, thereby, allowed less than the full available reduction for all pleas of guilty on each count of the third Information.

5.The sentencing judge erred in law in accepting that the counts in the first two Informations were replicated in the third Information and, therefore, that all counts in the third Information were new counts that should have attracted the full available reductions due to the pleas of guilty which were made within four weeks.

6.The sentence was manifestly excessive.

Held (the Court) granting permission to appeal but dismissing the appeal:

1.There was no suggestion that the appellant’s diagnosis…