Noah Redmond

Court Declares Child Sex Sentencing Law Invalid

The Supreme Court of South Australia declared invalid legislation designed to dictate how a Court was to sentence a defendant who had been convicted of Persistent Sexual Exploitation of a Child.

The parliament had also passed legislation amending the offence of Persistent Sexual Exploitation such that this issue only applies to a limited number of people who were convicted, but not yet sentenced, under the old offence provision.

In order to understand how the law came about, you may wish to read the blog about the decision of the High Court in R v Chiro here.

In order to understand the decision, it is also necessary to understand some underlying principles of Australian Law.

The Australian Constitution provides for a separation of powers with Judicial Power residing with the Courts.  Federal Courts can only exercise judicial power.  Legislation which purports to grant a federal court a non-judicial power, for example an administrative power, will be struck down as invalid.

The separation of powers at state level is not as strict, as the South Australian Constitution does not provide for a strict separation of powers.

The Australian Constitution provides for an integrated courts system whereby state courts can exercise federal judicial power.  This enables state courts to hear prosecution against commonwealth criminal law.

The result of these features is that a state court can be given a non-judicial power, but not if it is such as to interfere with the institutional integrity of the court and thus be repugnant to that court exercising federal judicial power.

An example of this is where the legislature purports to dictate an outcome to the court and thereby cloak an administrative act in the appearance of judicial neutrality.

The Supreme Court was asked to decide whether a statute was invalid on the basis that it was repugnant to the exercise of judicial power.

The statute purported to require a court sentencing someone for the (previous) offence of Persistent Sexual Exploitation of a child to adopt a certain approach.

The statute purported to overcome the issue identified in Chiro by requiring a Sentencing Judge to commence from the point that a verdict of guilty meant that all acts of abuse alleged had been committed.  The Sentencing Judge then had a discretion not to find some of them proved.

In a unanimous decision, though reached by two separate sets of reasons, the Court found that the statute was invalid.

One Justice held that the legislation provided for an impermissible intrusion into the processes and decisions of the courts by the executive, such as to impair the institutional integrity of the court by the State legislature.

The other two Justices held the legislation substantially undermines the legitimacy of the judicial process and the exercise of judicial power for it directs a court that has adjudged a defendant’s liability to punishment after a trial by jury, to put that adjudgment aside and repeat the exercise without a jury and the protections a jury provides in order to determine a different basis for punishment. The function conferred by the relevant section of the Act is incompatible with the District Court’s constitutionally mandated position.

The sentence imposed must be for the offence or offences of which a defendant has been convicted.  Although it is undesirable that a person may be sentenced for a less serious offence than that which the jury convicted them, it is worse that a person is sentenced from a more serious offence than the jury convicted them or for an act of which they have not been found to have committed.

If you or someone you know needs advice on these issues, please call us on 8227 2322.



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