John Rau seeks urgent law change after sex abuse teacher Marco Chiro successfully appeals sentence in High Court

EXCLUSIVE: The State Government is rushing to close a loophole that could see lighter sentences for paedophiles, after a shock High Court ruling in the favour of an Adelaide teacher who sexually abused a student.

LAWS ensuring paedophiles convicted of sexually abusing children are sentenced according to all their sexual acts has passed Parliament.

The laws, which Attorney-General John Rau said were needed urgently to ensure paedophiles set to be sentenced in coming weeks were did not escape sentencing for their most heinous acts, passed the Upper House unanimously on Thursday.

The alarm came after Adelaide schoolteacher Marco Chiro’s High Court appeal against his sentence for sexually abusing one of his students was successful.

Yesterday, The Advertiser reported that paedophiles convicted of sexually abusing children could have may escaped sentencing for their most heinous acts unless the urgent amendments were rushed through parliament.

At least three serious cases were at risk following a bombshell High Court judgment that will see an Adelaide schoolteacher re-sentenced for persistently sexually abusing one of his students.

Potentially dozens more paedophiles who have been convicted of persistent sexual exploitation of a child could have appealed their sentences following the majority High Court judgment.

One of the cases awaiting sentencing involves the shocking sexual abuse of two young children, described by a prosecutor as among the worst he had encountered.

Attorney-General John Rau has pleaded with the Opposition to co-operate with the passage of the urgent amendments this week — but he has been rebuffed yesterday.

The Opposition had not consented to the amendments being rushed through the Upper House as early as Thursday as part of a current Attorney-General’s Portfolio Bill, but said they would consider them if debated in the Lower House first with other planned legislative amendments.

Mr Rau said the amendments were “absolutely critical’’ to ensure paedophiles were adequately punished.

“They are not just critical, they are time critical,’’ he said.

“Every moment that we allow the situation to remain as it is, is a moment there is an opportunity for one of these characters to escape their just desserts.’’

He said the Opposition’s stance meant “a gap of weeks potentially’’ and no guarantee the legislation would be amended before parliament rose in four weeks.

“I do not know why they want to delay this. I think it is pretty clear what is at stake. It could be done this week,’’ he said.

The High Court decision will see disgraced Norwood Morialta High School teacher Marco Chiro re-sentenced following his conviction for persistent sexual exploitation of a child in the District Court in 2015.

Marco Chiro outside the District Court before he was convicted and sentenced for persistently sexually abusing a student. He won his High Court appeal against his sentence.

Chiro, 55, was sentenced to 10 years jail with a six year non-parole period, but appealed both his conviction and sentence to the Full Court of the Supreme Court, but this was dismissed.

He appealed to the High Court and in a majority decision it dismissed his appeal against conviction, but upheld his appeal against sentence.

Lawyers acting for Chiro argued that he should not have been sentenced on allegations of sexual intercourse, but only that he had kissed the young girl. They were among a range of sexual conduct included in the charge of persistent sexual exploitation of a child he was convicted of.

In the judgment Chief Justice Susan Kiefel stated that since District Court trial Judge Geraldine Davison did not ascertain which of the alleged acts of sexual exploitation the jury agreed were proven, Chiro “should have been sentenced on the view of the facts most favourable’’ to him.

She said Chiro “was sentenced, however, as if he had been found to have committed all of the acts of sexual exploitation”.

“The sentence imposed was therefore not only infected by error, but also manifestly excessive.’’

The State Government amendment, which was recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse prior to the Chiro judgment, seeks to ensure a convicted offender is sentenced having regard to “the general nature or character of the unlawful sexual acts’’ included in the charge.

Mr Rau conceded there were many cases in South Australia where, like Chiro, the offender has already been sentenced “in accordance with the accepted pre-Chiro approach’’.

“Following Chiro, if a jury is not asked which alleged sexual offences they find proven beyond reasonable doubt, the judge must sentence on the version of the facts most favourable to the offender, regardless of whether the judge has formed the view other more serious offences were proven beyond reasonable doubt,’’ he said.

“The offender may only be able to be sentenced on the least serious acts, such as kissing, irrespective of whether the trial judge thought the very serious acts were in fact proven.’’

Opposition legal affairs spokeswoman Vickie Chapman said the Opposition would not be “held to ransom to rush amendments through’’ without properly considering their merit.

“The issue is the government is scared it will have appeals coming out of their ears,’’ she said.

“No-one is going to get an appeal up and running in the next three weeks.

“We will not be held to ransom and pass legislation blind. In an emergency situation where there is a risk of personal safety to the public we will consider it. We want to be able to read this and discuss it with our colleagues.’’

Ms Chapman said “on the face of it’’ the Chiro judgment “raises some concerns with such cases”.

“I have done the best we can with this. We will look at it in the proper fashion.’’

On Tuesday the Opposition defeated an amendment that would have allowed authorities to keep a repeat young offender in custody.

As a result, the young offender is likely to be released into the community on Friday with police expecting he will reoffend and place the community at risk.