R V Urch [2024] SASCA 28 (21 March 2024)
Background
This was a case in which the Director of Public Prosecutions (“the DPP”) appealed against a sentence imposed by a judge of the District Court for two offences of possessing child exploitation material (pornographic images depicting children).
The maximum penalty at the time the offender was sentenced was 12 years in prison. The sentencing judge imposed a term of one year in prison. This was reduced by 25% for the offender’s plea of guilty to 9 months in prison. For the second offence the sentencing judge imposed a term of 6 months in prison, reduced for his plea of guilty by 15% to 5 months and 4 days. The sentences were to be served cumulatively (meaning one sentence would be added to the other). This resulted in a head sentence of one year, 2 months and 4 days. The judge imposed a period (a non-parole period) of 7 months and 6 days after which the offender could apply for parole. The offender had no previous criminal convictions
The DPP brought an appeal to the Court of Appeal on the basis that the sentence imposed was insufficient (in legal terms “manifestly inadequate”).
Leave to appeal
If the DPP wishes to appeal a sentence as being manifestly inadequate it can only do so if the Court of Appeal gives permission. Appellate courts are reluctant to give such permission because great importance is placed on the exercise of the sentencing discretion by the sentencing judge. It is insufficient if an appeal court would have imposed a far greater sentence of imprisonment. It must be demonstrated on appeal that the sentence was so far out of the proper range of sentences for such an offence that the sentencing discretion miscarried. Even then, a finding that the sentence imposed was inadequate will not necessarily mean that permission will be granted. Permission will be granted only in rare and exceptional cases and this will be the case if the sentence is so far below what was appropriate that to allow it to stand would shake public confidence in the administration of justice.
The appeal
The Court of Appeal first explored the issue of whether the sentence was insufficient. It observed that the possession and production of child sexual exploitation material is prevalent in the community and such offending creates a market for the abuse and degradation of children. In all the circumstances of the case, the court found that the sentence was manifestly inadequate.
Having decided that the sentence was manifestly inadequate, the court then considered whether leave to the DPP to appeal should be granted. The court granted permission and took the view that the sentence imposed was so disproportionate to the serious nature of the offending that to allow it to stand would undermine public confidence in the administration of justice. In addition, permissions was warranted because it was necessary to maintain sentencing standards for offences involving child exploitation material so as to deter those who might be minded to commit such an offence.
The Court of Appeal set aside the sentence imposed in the District Court and substituted a head sentence of 2 years, 2 months and 25 days with a non-parole period of 1 year, 3 months and 7 days.