Zozuk-Levy v The King

[2025] SASCA 90

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ZOZUK-LEVY v THE KING

[2025] SASCA 90

Judgment of the Court of Appeal  

(The Honourable President Livesey and the Honourable Justice Stanley)

21 August 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ILLNESS OR PHYSICAL DISABILITY

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY

The applicant, Tylor Zozuk-Levy, sought leave to appeal against a sentence imposed. He had pleaded guilty to possession and dissemination of child exploitation material contrary to ss 63A(1) and 63(b) of the Criminal Law Consolidation Act 1935 (SA), and four counts of failing to comply with reporting obligations contrary to s 44(1) Child Sex Offenders Registration Act 2006 (SA). The applicant also, in breach of his reporting obligations, breached his suspended sentence bond.

The total period of imprisonment imposed was four years, four months, and 26 days. This sentence included applicable discounts and was ordered to be served cumulatively with the revoked suspended sentence.

The applicant advances two grounds of appeal for determination by the Court. He contends, first, that the judge erred by failing to give sufficient weight to his limited cognitive capacity and diminished ability to appreciate the gravity of the offending. Secondly, he submits that the judge erred in not finding exceptional circumstances, having regard to his personal circumstances including his cognitive limitations, and the absence of timely sex offender treatment, treatment which, once received, helped him to understand the gravity and nature of his offending. On that basis, he claimed he should not have been sentenced to an immediate term of imprisonment and that the sentence imposed was manifestly excessive.

In considering the grounds of appeal, the Court noted that error is not demonstrated merely by asserting that greater weight ought to have been given to certain factors; such a complaint can only be relevant to the ground of appeal that, in doing so, the sentence imposed was manifestly excessive.

Held:

1.As to the first ground, the Court held that the sentencing judge did not fail to take into account the applicant’s cognitive limitations. The judge referred expressly to the evidence on this issue and understood the applicant’s difficulties in appreciating the wrongfulness of his conduct. The submission amounted to no more than a complaint that insufficient weight was afforded this factor, which does not disclose House v The King error.

2.As to the second ground, the Court held that the sentencing judge did not err in declining to find exceptional circumstances. The applicant’s personal and cognitive circumstances were considered, but…