Abbott (a pseudonym) v The Queen

[2021] SASCA 131

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ABBOTT (A PSEUDONYM) v THE QUEEN

[2021] SASCA 131

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Stanley)

4 November 2021

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE

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

The appellant pleaded guilty to 12 offences involving the sexual exploitation and abuse of children, comprising four counts of aggravated produce child exploitation material contrary to s 63(a) of the Criminal Law Consolidation Act (SA) (the CLCA), three counts of indecent filming contrary to s 26D(1) of the Summary Offences Act 1953 (SA), three counts of aggravated indecent assault contrary to s 56 of the CLCA, one count of aggravated possess child exploitation material contrary to s 63A(1)(a) of the CLCA, and one count of possess child exploitation material contrary to s 63A(1)(a) of the CLCA. The offending occurred over a period between 2007 to 2010 and then 2019 to 2020, against four identifiable victims.

On 18 June 2021 the appellant was sentenced by a Judge of the District Court pursuant to s 26 of the Sentencing Act 2017 (SA). The sentencing judge imposed one sentence of 13 years and 8 days imprisonment for all the offending. A non-parole period of at least four-fifths of the head sentence was fixed pursuant to ss 53 and 54 of the Sentencing Act 2017 (SA), that being 10 years, 4 months and 23 days.

The appellant appealed on four grounds. Each ground was referred to the Court of Appeal for argument as on appeal. The appellant contended that the sentencing judge erred in treating an absence of expressed remorse as an aggravating feature. A further two grounds related to whether the sentencing judge erred in imposing cumulative sentences for offences arising from the “same” conduct. The final ground was of manifest excess.

Held, (the Court) refusing permission to appeal and dismissing the appeal:

1.      The sentencing judge did not err in weighing as a factor in sentencing that the appellant demonstrated no sign of wanting to do anything to address his predatory sexual interest in children, when sentencing the appellant for very serious offending against four children. The judge’s sentencing remarks did not indicate that the judge was penalising the appellant for his lack of contrition and remorse. Rather, the judge’s remarks must be understood as highlighting there was no scope for leniency in the appellant’s sentence, given his absence of remorse or contrition and the need to protect the safety of the community.

2.      The sentencing judge did not err in imposing cumulative sentences for counts 1 and 12. The appellant’s offending in counts 1 and 12 was not a single course of conduct. The different nature of the subject offences, coupled with the different occasions when they occurred, was a sufficient justification for the judge to have exercised the sentencing discretion the way she did.

3.      The judge expressly stated she took the overlap in the offending between counts 1 and 12 into account when fixing the sentencing. There is no reason to doubt that the judge structured the sentence in the manner she explained.

4.      The fact that the appellant’s indecent assault offending did not involve actual penetration does not render the final sentence manifestly excessive. The circumstances of the appellant’s offending, and the need for personal and general deterrence warrant a severe sentence, and the sentence imposed by the sentencing judge is not manifestly excessive.

Sentencing Act 2017 (SA) ss 3, 9, 26, referred to.
A B v R (1999) 198 CLR 111; Cuong v The Queen [2021] SASCA 89; Harris v R [1967] SASR 316; Lane v The Queen [2020] SASCFC 82; Ndreka v The Queen [2021] SASCA 11; R v B, RWK (2005) 91 SASR 200; R v Copeland (No. 2) (2010) 108 SASR 398; R v H, G J [2014] SASCFC 102; R v Padberg (2010) 107 SASR 386; Siganto v The Queen (1998) 194 CLR 656, considered.

ABBOTT (A PSEUDONYM) v THE QUEEN
[2021] SASCA 131

Court of Appeal – Criminal:  Livesey P, Doyle JA and Stanley AJA

THE COURT:

Introduction

1. This is an appeal against sentence. The appellant pleaded guilty to 12 child sexual exploitation offences. Utilising s 26 of the Sentencing Act 2017 (SA) (Sentencing Act) the judge imposed a single sentence of 13 years and eight days imprisonment, after a reduction for one month and 11 days spent in custody. The judge fixed a non-parole period of 10 years, four months and 23 days representing four-fifths of the head sentence as the appellant was a serious repeat offender.

   The offending

2. The offending was committed against four girls who were aged between 10 and 17 years.  One of the victims was the biological daughter of the appellant.  The offending occurred over a protracted period of time between 2007 and 2010 and again in 2019 and 2020.  It involved the possession and production of a substantial quantity of child exploitation material.

3. Details of the offending, the applicable maximum penalty and the notional sentences imposed are set out in the following table.  The offences are set out chronologically. 

Offence	Victim	Maximum Penalty	Sentence
Count 12 Aggravated possess CEM Count 13 Basic possess CEM	[KA] & [KS] (aged 11 to 13) [KA] & [KS] (aged 13 to 15)	10 years 7 years	4 years, 3 months (15% reduction from 5 years starting point)
Count 1 Aggravated produce CEM	[KS] (aged 11 to 13)	12 years	2 years, 8 months, 13 days (10% reduction on 3 years starting point)
Count 1 (Dist Ct Info) Aggravated indecent assault	[KS] (aged 11 to 14)	10 years	1 year, 2 months, 8 days (5% reduction from 15 months starting point)
Counts 5, 8 and 11 Indecent filming	[P] (aged 17 years)	2 years or $10,000 fine	11 months, 28 days (15% reduction from 14 months starting point)
Counts 18, 19 and 21 Aggravated produce CEM	[L] (aged 10 years)	12 years	2 years, 8 months, 13 days (10% reduction on 3 years starting point)
Counts 4 and 5 (Dist Ct Info) Aggravated indecent assault	[L] (aged 10 years)	10 years	1 year, 11 months, 23 days (5% reduction on 25 months starting point)

1. In addition to the offences of possessing and producing child exploitation material the appellant fell to be sentenced for three counts of aggravated indecent assault. 

2. Police raided the appellant’s address in August 2019.  On a portable hard drive they found 2,905 child exploitation images and 922 child exploitation videos.  In relation to that material count 12 on the Magistrates Court information was an aggravated offence because the images and videos depict children under the age of 14.  That aggravated offence comprised 2,712 of the images and 799 of the videos.  Most of that material had been classified as category 1, being depictions of children with no sexual activity but with nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on the genital area or solo urination.  There were 29 images and 200 videos in category 4.  That category covers penetrative sexual activity between children and adults, mutual masturbation and other non-penetrative sexual activity.  There were 10 videos in category 5 which covers sadism, bestiality or humiliation. 

3. In relation to the videos, 28 were labelled with the first names of the appellant’s daughter and her friend, KS.  The videos appear to have been filmed in the loungeroom of the appellant’s house between 2007 and 2010 when the girls were aged between 11 and 13.  They show the two girls dancing and acting in a sexual manner and exposing their breasts, vaginas and buttocks.  In some of the videos they are simulating sex acts on themselves or with each other.  There were also 23 images of the appellant’s daughter’s friend, KS, taken from those videos.  Seven videos were made by the appellant.  They are the subject of count 1 on the Magistrates Court information being the offence of aggravated produce child pornography. 

4. The remaining videos and images comprise count 13 on the Magistrates Court information.  All the images and most of the videos were classified in category 1.  There were 24 in category 2, three in category 3 and eight in category 4.

5. KS was the victim of one count of aggravated indecent assault.  The offending involved the appellant rubbing a small brush between KS’ legs over her groin.  The two further counts of aggravated indecent assault were committed against L.  In April 2020 the appellant was stroking and touching L’s buttocks in public while showing her something on his mobile phone.  At around the same time the appellant interfered with L while she was lying on a sofa bed wearing underwear and a crop top.  The appellant slapped her buttocks on two occasions with his hand lingering on her buttocks each time before tickling her on her ribs and stomach.  L was 10 years of age at the time of the commission of these offences. 

6. The offending against the fourth victim, P, occurred in 2019.  She was 17 years of age at the time.  The appellant placed a hidden camera in one of the bedrooms of his home.  The charged offending consists of three video films on different dates between 17 May and 23 June of that year.  Each of the videos depict P in her underwear while getting dressed or undressed.  As a result, the appellant was charged with three counts of indecent filming.

   The sentencing remarks 

7. In her sentencing remarks the judge, after setting out the particulars of the appellant’s offending and its impact on the four victims and their parents, turned to a consideration of the appellant’s personal circumstances.  The judge noted he was born in South Australia.  He left school when he was 15.  He joined the army at age 17 and was based in Townsville for three years before being discharged on medical grounds.  Subsequently he was employed in various jobs including as a manager and wholesaler for an oil company.  He enjoys good health.  He has one other child.  At the time of sentencing he was 61 years of age.  Relevantly, he has a prior conviction for possession of child pornography in December 2002. 

8. Before turning to the fixing of sentence the judge said:[1]

   In relation to this offending, the submission made by your counsel on your behalf was that you have a sexual interest in children, your offending is predatory and sophisticated.  It was submitted that there was nothing mitigatory about your offending. 

   I note that you have not expressed any contrition, remorse or insight into your behaviour or, indeed, any desire to rehabilitate yourself.  Your counsel submitted that because you have been in custody it is not possible to gauge your prospects of rehabilitation. 

   This matter was adjourned for a number of months in order for you to attend for a psychological assessment.  I note that you did not attend and you wished to proceed without one. 

   There is not doubt that the seriousness of your offending is such that the only penalty that can be justified is imprisonment.  The paramount consideration in sentencing you is the protection of the safety of the community.  I think that looms large here for a number of reasons.  First, because your offending has spanned a considerable number of years and you have demonstrated no contrition and remorse or intent to rehabilitate.  Second, there are four identifiable victims, including your own daughter.  Third, you have fuelled the market for the sexual abuse of many unidentified child victims because of your possession of so much child exploitation material.  Fourth, you have offended in relation to L in 2020 even after the police spoke to you in 2019. 

   The need for general deterrence is also an important factor in sentencing for these types of offences.  The sexual abuse of children is abhorrent and something for which the community has no tolerance at all.  The sentence needs to send a clear message to other like-minded people that such offending will result in significant time in gaol.  You need to be punished for the offending behaviour and held accountable to the community for your offending. 

   I also think personal deterrence looms large given your lack of contrition, remorse, insight and lack of intention to rehabilitate.  You have admitted you have a predatory sexual interest in children but you have demonstrated no sign of wanting to do anything to address that problem, let alone get yourself psychologically assessed.  You have grossly abused the trust of your daughter, you gained and then betrayed the trust of K, P and L.  You have heard from two of their mothers who are in disbelief as to what you have done to their children. 

   [1]     AB 61-62.

   Grounds of appeal

9. The appeal is brought on four grounds:

   ·The sentencing judge erred in law by treating the appellant’s absence of expressed remorse as an aggravating feature of the total offending (ground 1).

   ·The head sentence was distorted by sentencing the appellant to cumulative sentences of imprisonment for counts 1 and 12 on the Magistrates Court information despite the offences arising from the same conduct (ground 2).

   ·The sentencing judge’s remarks were inadequate with respect to the “overlap” in conduct comprising counts 1 and 12 on the Magistrates Court information and the consideration given to concurrency (ground 3).

   ·The sentence is manifestly excessive.  The judge erred in failing to reduce the head sentence for totality (ground 5).

10. The question of permission to appeal on all grounds was referred to the Court of Appeal. 

    Ground 1:  remorse and rehabilitation

11. The appellant submits that the sentencing judge erred in treating the lack of any expression of remorse by the appellant as an aggravating feature of his overall offending.

12. The appellant submits that he fell to be sentenced for his proven or admitted conduct the subject of his guilty pleas.  Before the sentencing judge, his counsel made no submission with respect to contrition and remorse.  Nor did the appellant himself offer an apology.  There was no positive submission with respect to rehabilitation.  The appellant accepted he had a sexual interest in children.  The submission put was that the appellant’s prospects for rehabilitation were unknown as he had been in custody continuously since 21 June 2020. 

13. The appellant submits that the judge erred by giving great weight to the absence of any expression of contrition or remorse by him.  The appellant’s lack of insight or contrition was not an aggravating feature of his offending.  It merely meant that what might otherwise be a mitigating factor to be weighed in the exercise of the sentencing discretion did not exist in this case.  In any event, the appellant entered pleas of guilty.  A plea of guilty is an act of contrition and remorse.

14. We do not accept the submission that the sentencing judge erred in her treatment of the appellant’s lack of remorse. 

15. Section 11(1)(g) of the Sentencing Act provides that remorse is a mitigating factor when exercising the sentencing discretion. The common law recognises that remorse is a step towards an offender’s rehabilitation.[2]  A plea of guilty may properly be treated as a mitigating factor, indicating remorse, and will justify a reduction in the sentence below the level appropriate to the facts of the offence.[3]

    [2]     Harris v R [1967] SASR 316 at 328; A B v R (1999) 198 CLR 111 per Hayne J at [112]-[117].

    [3]     Siganto v The Queen [1998] HCA 74 at [30], (1998) 194 CLR 656 at 666.

16. The judge in her sentencing remarks noted that the appellant had not expressed any contrition, remorse or insight into his behaviour, or any desire to rehabilitate.  It can be accepted that the absence of remorse or contrition on the part of a defendant is not an aggravating feature of his or her offending.  However, in this case, we consider the judge’s remarks must be understood as highlighting the fact that there was no scope for leniency given the absence of remorse or contrition. 

17. In addition, in the exercise of the sentencing discretion, the judge was correct in recognising the primary and paramount purpose for sentencing a defendant for an offence is to protect the safety of the community.[4]  In that context it was relevant that the appellant demonstrated no contrition, remorse or intent to rehabilitate.  The judge was also correct in thinking that personal deterrence loomed large in the exercise of the sentencing discretion given the appellant’s lack of contrition, remorse, insight and lack of intention to rehabilitate.  There was no error on the part of the judge in weighing as a factor in sentencing that the appellant demonstrated no sign of wanting to do anything to address his predatory sexual interest in children.  In his case, the pleas of guilty were not so much an act of contrition and remorse as a recognition of the strength of the prosecution case. 

    [4]     Sentencing Act 2017 (SA) s 3 and s 9.

18. The judge’s sentencing remarks did not indicate that her Honour was penalising the appellant for the lack of contrition and remorse.  Rather, the judge was explaining the entirely orthodox approach she took to sentencing the appellant for very serious offending against four children, including his daughter, which had occurred over a lengthy period of time.  The appellant’s lack of remorse, contrition and insight into his offending evidenced poor prospects for his rehabilitation.  This was obviously germane to the need to protect community safety generally, and the safety of young girls in particular. 

19. We refuse permission to appeal on ground 1.

    Ground 2:  cumulative v concurrent

20. The appellant submits that the sentencing discretion miscarried because the judge sentenced the appellant to cumulative sentences in respect of counts 1 and 12 on the Magistrates Court information despite that offending arising from the same conduct.  Count 12 on the Magistrates Court information charged the appellant with aggravated possession of child exploitation material.  This charge related to 2,712 child exploitation images and 799 child exploitation videos which depicted children under 14 years of age.  Of those 799 videos 28 depicted the appellant’s daughter and KS.  Seven of those 28 videos were the subject of the charges of aggravated production of child exploitation material in count 1 on the Magistrates Court information.

21. The appellant complains that notwithstanding this overlap the sentencing judge imposed separate sentences for the offending the subject of count 1 and count 12 on the Magistrates Court information.  The judge imposed a single sentence of imprisonment of four years and three months for the offences of aggravated possession of child exploitation material in count 12 and possession of child exploitation material in count 13, which was made cumulative with a sentence of two years, eight months and 13 days imprisonment for the charge of aggravated production of child exploitation material in count 1. 

22. The appellant submits that there is a substantial overlap in the elements of the offences charged on counts 1 and 12 of the Magistrates Court information.  Most of the conduct in count 1 is contained in the offending charged on count 12.  The critical feature of the offending in count 1 is the appellant’s filming of the children.  While the appellant’s possession of the child exploitation material he produced made out a separate offence, the imposition of two cumulative sentences for that conduct was excessive and disproportionate.

1. We do not accept this submission.

2. First, in imposing sentence the judge recognised expressly that there was “a sense of overlap” between count 1 and count 12 in terms of seven videos, one being production and the other being possession.[5]  The judge remarked that the overlap was “relatively minor in the scheme of things” but she took that into account when fixing sentence.[6]

   [5]     AB 63.

   [6]     AB 63.

3. Second, the premise of this ground, namely, that the subject offences arise from the same conduct, is incorrect.  The offending in counts 1 and 12 were not a single course of conduct.[7]  Collecting thousands of child pornographic videos and images over time is one kind of offending; making sexual exploitation videos of your own daughter and her friend over a number of years is another kind of offending.  The count 12 offending related to possession of a very large quantity of child exploitation material.  The count 1 offending related to the production of seven particular videos.  They were made over several years.  That those seven videos formed a very small part of the appellant’s collection of child pornography accurately fitted the description of being a relatively minor overlap in the scheme of things.  The different nature of the subject offences, coupled with the different occasions when they occurred, is a sufficient justification for the judge to have exercised the sentencing discretion the way her Honour did. 

   [7]     R v Copeland (No. 2) [2010] SASCFC 61 at [106], (2010) 108 SASR 398 at 426.

4. It is to be remembered that the authorities emphasise the broad degree of discretion that exists in the exercise of the sentencing discretion in imposing sentences that are cumulative or concurrent.[8]

   [8]     R v H, G J [2014] SASCFC 102 at [35]

5. We refuse permission to appeal on ground 2. 

   Ground 3:  inadequacy of reasons

6. Ground 3 is closely related to ground 2. 

7. The appellant complains that the judge’s sentencing remarks were inadequate in explaining the basis for the sentences imposed on counts 1 and 12 of the Magistrates Court information.  He complains that the sentencing remarks in relation to these offences are ambiguous given that prima facie the sentences are made wholly cumulative.  He contends that it was incumbent on the judge to state clearly if there was any measure of concurrency between the sentences imposed on counts 1 and 12. 

8. We do not accept this submission.

9. Section 19(1) of the Sentencing Act provides:

   A court must, on sentencing a defendant who is present in court (whether in person or by audio visual link or audio link) for an offence or offences, state the sentence that it is imposing for the offence or offences and its reasons for imposing that sentence, including (for example) any reason why a sentence that would otherwise have been imposed for the offence or offences has been reduced.

10. In R v Copeland (No. 2)[9] Gray J said:[10]

    The purpose of sentencing remarks is primarily to provide an explanation to a defendant for the sentence imposed, but also to demonstrate that correct principles have been applied. When sentencing remarks address these concerns, not only is the defendant informed about the punishment to which he or she is subject, but it also assists the appellate court in understanding the basis for the sentence and in performing its appellate function. This is reinforced by the terms of [s 19 of the Sentencing Act] with respect to the obligation to provide reasons for sentence.

    The content of sentencing remarks is a matter of discretion for a sentencing judge. 

    [9] (2010) 108 SASR 398.

    [10] (2010) 108 SASR 398 at 409-410.

11. The process of sentencing is ultimately a matter of discretion and judgment.  It is not a mathematical exercise.[11]  Where a defendant comes before the Court for sentence for multiple offences the Court must impose a sentence which is proportionate to the circumstances of the offending and the circumstances of the offender.  There are various tools available to a sentencing judge to address proportionality.  They include concurrency, totality and fixing two discrete sentences adjusted to eliminate any overlap in the separate incursions into criminal activity for which the defendant is to be sentenced.[12]

    [11]   R v Copeland (No. 2) (2010) 108 SASR 398 at 409.

    [12]   Lane v The Queen [2020] SASCFC 82 per Livesey J at [4]-[5].

12. The judge’s sentencing remarks were adequate.  They met the purpose of sentencing remarks.   In this case the judge expressly said she took the overlap in the offending between counts 1 and 12 into account when fixing sentence.[13]  There was no reason to doubt that the judge structured the sentence in the manner she explained.  There is no error in the approach the judge took. 

    [13]   AB 63.

13. We refuse permission to appeal on ground 3.

    Ground 5:  manifest excess

14. The appellant complains that the sentence of one year and two months for the indecent filming offending the subject of counts 5, 8 and 11 of the Magistrates Court information is manifestly excessive.  In the alternative, the overall sentence is manifestly excessive because of the failure to reduce the starting point of 15 years and six months imprisonment for totality.

15. We do not accept these submissions.

16. The principles concerning manifest excess were recently analysed in Ndreka v The Queen[14] where Doyle JA, with whom Kelly P and Bleby JA agreed, said:[15]

    The principles governing the Court’s consideration of a submission of manifest excess are well-known.  They were summarised by the High Court in Dinsdale v The Queen and Hili v The Queen.  They require satisfaction by the appellate court that the impugned sentence is unreasonably high, or plainly unjust, in the sense required by House v The King.  It is not enough that the sentence is higher than what the appellate court, or some other sentencing judge, might have imposed.  The appellate court will only interfere if the sentence is outside the range of sentences that might reasonably have been imposed.  Whether this is so requires consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.  But ultimately there is a limit to the amount of analysis that may be brought to bear.  Often the existence or otherwise of manifest excess will be a conclusion that does not admit of lengthy exposition.

    [citations omitted].

    [14] [2021] SASCA 11.

    [15] [2021] SASCA 11 at [28].

17. While it can be helpful to consider the way in which the ultimate sentence was structured in order to understand how the sentence is reached, whether the sentence is manifestly excessive will be a conclusion not dependent on identified specific error.  To succeed on appeal the appellant must establish that the sentence imposed was unreasonable or unjust warranting the intervention of the Court.[16] 

    [16]   Cuong v The Queen [2021] SASCA 89 at [12].

18. For the three indecent filming offences the judge imposed a single sentence of 11 months and 28 days, reduced from a starting point of one year and two months for the pleas of guilty.  That is not too high.  The maximum penalty for each offence is two years imprisonment.  The three offences involved three separate incursions into crime.  The offending involved a gross breach of trust.  The victim was 17 years of age at the time.  The offending was committed by the use of a hidden camera in the bedroom.  The motive was the appellant’s predatory sexual gratification.  In the circumstances the starting point was proportionate to the seriousness of the offending. 

19. Turning to the overall sentence we reject the appellant’s complaint that the starting point of 15 years and six months was so crushing that it should have been reduced in accordance with the totality principle.  The judge structured the sentence so as to arrive at a starting point before making reductions for guilty pleas.  That resulted in an overall head sentence of 13 years, one month and 19 days before a final reduction which credited the appellant with the whole time he spent in custody.  The sentence was appropriate and proportionate. 

20. The occasion for the application of the totality principle is relatively infrequent.  As Doyle CJ said in R v B, RWK:[17]

    In the course of submissions counsel for the appellant invoked the totality principle. There is no substance at all in that submission. The sentence in question cannot be regarded as a crushing sentence. That is often an indicator that a sentence should be reduced by applying the totality principle. The totality principle cannot be invoked, as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.

    [17] [2005] SASC 84 at [16], (2005) 91 SASR 200 at 203.

21. This was serious offending which called for condign punishment.  It involved the corruption of three young girls and a teenager.  All the offending involved a gross breach of trust.  But this was particularly so in relation to the appellant’s daughter.  The offending against her occurred when she was between the ages of 11 and 13.  The offending occurred over lengthy periods of time and continued after the appellant had been interviewed by police.  It was the product of a predatory interest in girls.  A substantial sentence was required to satisfy the purpose and objective of criminal sentencing.

22. The offending had a profound impact on the victims of these production and indecent filming offences.  Also, it must be remembered that the possession offences are not victimless crimes.  Offending of this kind fuels the demand for the production of such materials and the abuse and exploitation of children that it involves.[18]  In this case the appellant was in possession of a very large quantity of child exploitation material.  This was not his first offence for possession of child pornography.  The establishment and maintenance of sentencing standards for offences of this type which have a strongly deterrent effect is necessary for the protection of young girls.[19] 

    [18]   R v Padberg (2010) 107 SASR 386 per Doyle CJ at 389-390.

    [19]   R v Padberg (2010) 107 SASR 386 per Kourakis J at 394.

23. The fact that the indecent assault offending in this case did not involve actual penetration does not render the final sentence manifestly excessive.  That is particularly so as some of this offending occurred after the appellant had been interviewed by police.

24. The maximum penalty for aggravated indecent assault is 10 years.  In relation to the offending against L there was a starting point of 25 months for two counts with some concurrency.  The starting point in relation to the offending against KS was 15 months.  These starting points do not lead to a conclusion of manifest excess.

25. The judge considered whether there was any need for a further reduction to reflect the principle of totality. In the circumstances she did not consider that necessary. The judge, having structured the sentence, stood back and considered whether the overall sentence was proportionate to the circumstances of the offending and the offender. She concluded the sentence imposed pursuant to s 26 of the Sentencing Act was not crushing. The judge recognised that apart from the pleas of guilty there were no mitigating circumstances in regard to the offending or the appellant’s personal circumstances.[20]  In all the circumstances we cannot detect any error in that conclusion. 

    [20]   AB 63.

26. For the reasons we have explained, the circumstances of this offending and the circumstances of this offender warranted a severe sentence.  It is not manifestly excessive. 

27. We refuse permission to appeal on ground 5.

    Conclusion

28. For the reasons given, the application for permission to appeal is refused.