Brooker v The King

[2024] SASCA 135

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BROOKER v THE KING

[2024] SASCA 135

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice David and the Honourable Auxiliary Justice Bond)

26 November 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

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 - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

This is an application for permission to appeal against sentence on the basis that the appellant’s sentence is manifestly excessive.

The appellant pleaded guilty to 182 offences and was sentenced to imprisonment for 36 years, together with a non-parole period of 29 years.

The appellant’s offending was prolific and diverse. It spanned four and a half years, concluding upon the appellant’s arrest. Almost 100 separate child victims were involved in the offending the subject of sentence.

There are three broad categories of offending.  First, it involved a combination of physical contact offending and communication offending with a range of children, primarily teenage boys.  Secondly, the appellant actively participated in the market for child exploitation material, obtaining images of his victims and disseminating them to others over the internet.  Thirdly, and at the same time, the appellant obtained, possessed and disseminated child exploitation material from various other sources. The material which the appellant exchanged demonstrated his interest in the worst categories of depraved and degrading child exploitation material.

The appellant contended that the sentence which should have been imposed by the sentencing judge was the lowest available to meet the relevant sentencing objectives in the context of the requirement to protect the safety of the community.

Held (the Court) granting permission to appeal but dismissing the appeal:

1.The approach taken by the appellant in seeking to emphasise community protection and rehabilitation at the expense of other relevant sentencing considerations must be rejected. [72]-[75]

2.To consider the availability of indeterminate detention under s 57 of the Sentencing Act 2017 (SA) when determining a head sentence would involve an error of principle. The sentence of imprisonment must be considered in light of the gravity of the crime and its objective circumstances, rather than by reference to the possibility of future events. [81]

3.Even in cases where the sentencing standard in R v D (1997) 69 SASR 413 is not directly applicable, it may still be relevant and influential in cases sharing features similar to those which underpin the sentencing standard, including cases under s 50 of the CLCA. [84]-[87]

4.It is for sentencing courts to make it clear that the community does not tolerate the sexual abuse of children in any capacity, whether in person or over the internet, including by the pernicious production, possession and dissemination of child exploitation material. [88]

5.Appeal courts must likewise do what they can to protect children and the community, by ensuring that sentences deter, denounce and punish offenders and, by their reasons, give due recognition to the interests of victims and their families. This must be done recognising that the prevailing standards of punishment reflect a hardening in community attitudes and increased maximum penalties for offending of this kind. [88]

6.This is not a case where it can be said that the relevant sentencing considerations will have obviously been spent before 36 years, obviating the need to impose a sentence of that magnitude. The profound seriousness and breadth of the offending and the evident need for the court to punish and denounce such brazen and depraved criminal conduct, must also be reflected. [93]-[96]

Criminal Law Consolidation Act 1935 (SA) ss 50, 63, 63A, 63B; Criminal Procedure Act 1921 (SA) ss 150, 157, 158; Sentencing Act 2017 (SA) ss 3, 4, 26, 54, 57; Sentencing Act 1991 (Vic) s 6D; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 11, referred to.
Barbaro v The Queen (2014) 253 CLR 58; Baxter (A Pseudonym) v The King [2024] SASCA 64; Burgoyne v The King (2024) SASCA 61; Channon v The Queen (1978) 33 FLR 433; Cuong v The Queen [2021] SASCA 89; Da Silva v The Queen [2020] SASCFC 66; DES v The Queen [2020] SASCFC 32; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Elias v The Queen (2013) 248 CLR 483; Gassy v The Queen [2023] SASCA 90; Hackett v The Queen [2021] SASCA 32; Hoare v The Queen (1989) 167 CLR 348; House v The King (1936) 55 CLR 499; Hurt v The King [2024] HCA 8; Klosowski v The Queen [2021] SASCA 85; Knight v The Queen (2021) 138 SASR 156; Lee v Western Australia [2022] WASCA 137; Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120; Nguyen v The Queen (2022) 140 SASR 554; Police (SA) v Chilton (2014) 120 SASR 32; R v Amos [2021] SASCA 126; R v Bahrami (2020) 137 SASR 327; R v Beaumont [2023] SASCA 128; R v Berry [2024] SASCA 116; R v Blain (1984) 115 LSJS 270; R v Bradley [2024] SASCA 56; R v Brandon [2024] SASCA 9; R v Brooker [2024] SASC 84; R v D (1997) 69 SASR 413; R v Dube (1987) 46 SASR 118; R v Friesen [2020] 1 SCR 424; R v Harris [2023] SASCA 129; R v Hatahet (2024) 98 ALJR 863; R v Henderson (2023) 142 SASR 507; R v Hunter (1984) 36 SASR 101; R v Karnage [2019] SASCFC 82; R v King [2009] NSWCCA 117; R v Lian [2023] SASCA 122; R v Lutze (2014) 121 SASR 144; R v Marshall [2023] SASCA 105; R v McIntyre (2020) 138 SASR 17; R v MJJ; R v CJN (2013) 117 SASR 81; R v MJR (2002) 54 NSWLR 368; R v Morse (1979) 23 SASR 98; R v Nankivell [2022] SASCA 87; R v Nemer (2003) 87 SASR 168; R v Pham (2015) 256 CLR 550; R v Stain [2021] SASCA 70; R v Symons (2018) 130 SASR 5031; R v Reiner (1974) 8 SASR 102; R v Yaroslavceff [2022] SASCA 123; Ryan v The Queen (2001) 206 CLR 267; Wakefield v The King [2023] SASCA 95; Wallace v The King [2023] SASCA 127; Warner v The Queen [2022] SASCA 142; White v The Queen (2022) 141 SASR 398; Wong v The Queen (2001) 207 CLR 584; Yardley v Betts (1979) 22 SASR 108, considered.

BROOKER v THE KING
[2024] SASCA 135

Court of Appeal – Criminal:  Livesey P, David JA and Bond AJA

THE COURT

Introduction

1. This application for permission to appeal against sentence is brought pursuant to ss 150, 157(1)(a)(iii) and 158(7) of the Criminal Procedure Act 1921 (SA) and is concerned with whether the appellant’s sentence is manifestly excessive.

2. On 20 December 2023, the sentencing judge sentenced the appellant to imprisonment for 36 years, together with a non-parole period of 29 years.

3. The appellant had earlier pleaded guilty to 182 offences across three Informations, concerning:

   1.Five counts of sexual abuse of a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum sentence was life imprisonment;[1]

   2.One count of aggravated producing child exploitation material, contrary to s 63(a) of the CLCA, for which the maximum penalty was imprisonment for 12 years.

   3.Two counts of producing child exploitation material, contrary to s 63(a) of the CLCA, for which the maximum penalty was imprisonment for 10 years.

   4.Twenty-four counts of aggravated dissemination of child exploitation material, contrary to s 63(b) of the CLCA, for which the maximum penalty was imprisonment for 12 years;

   5.Twenty-one counts of dissemination of child exploitation material, contrary to s 63(b) of the CLCA, for which the maximum penalty was imprisonment for 10 years;

   6.One hundred and seven counts of communicating for a prurient purpose with the intention of making a child amenable to sexual activity, contrary to s 63B(3)(b) of the CLCA, for which the maximum penalty was imprisonment for 10 years;

   7.Four counts of aggravated possession of child exploitation material, contrary to s 63A(1)(a) of the CLCA, for which the maximum penalty was imprisonment for seven years;

   8.Four counts of possession of child exploitation material, contrary to s 63A(1)(a) of the CLCA, for which the maximum penalty was imprisonment for five years; and

   9.Eight counts of aggravated obtaining access to child exploitation material, contrary to s 63A(1)(b) of the CLCA, for which the maximum penalty was imprisonment for five years.

   10.Six counts of obtaining access to child exploitation material, contrary to s 63A(1)(b) of the CLCA, for which the maximum penalty was imprisonment for five years.

   [1] An offence contrary to s 50 of the CLCA was described as “maintaining an unlawful sexual relationship with a child”. Section 3 of the Criminal Law Consolidation (Child Sexual Abuse) Amendment Bill 2023 (SA) substitutes this with “sexual abuse of a child”.

4. Attached to these reasons as Annexure A is a schedule of the offences, the notional starting point selected by the sentencing judge, as well as the maximum reductions available for the guilty pleas entered, and their effect.  Attached as Annexure B to these reasons is the “Oliver scale” by which child exploitation material has been categorised on a national basis.[2]

   [2]     See the references to the different categories which have been used, discussed in R v Brandon [2024] SASCA 9, [7]. As the Oliver scale was used by the sentencing judge in this case, that scale will be referred to in these reasons.

5. For the following reasons, permission to appeal should be granted but the appeal dismissed. The very heavy sentence imposed in this case was not manifestly excessive. Indeed, it was warranted by the appellant’s extremely serious offending.

   The circumstances of the offending

6. The appellant’s offending was prolific and diverse, spanning four and a half years between January 2016 and August 2020, when the appellant was arrested. 

7. There are three broad categories of offending. First, it involved a combination of physical contact offending and communication offending with a range of children, primarily teenaged boys.  Secondly, the appellant actively participated in the market for child exploitation material, obtaining images of his victims and disseminating them to others over the internet.  Thirdly, and at the same time, the appellant obtained, possessed and disseminated child exploitation material from various other sources. The material which the appellant exchanged demonstrated his interest in the worst categories of depraved and degrading child exploitation material, spanning sexual activity with infants, rape, necrophilia, coprophilia and physical violence. 

8. It was possible to discern 96 separate child victims with whom the appellant engaged directly, whether by physical contact offending or by communication offending.  Of these, police managed to identify nine teenage boys, some of whom supplied victim impact statements.  Eighty-seven victims could not be identified and the communications between the appellant and these children suggested that many were overseas.  The appellant engaged in highly sexualised communications categorised by exchanging images, videos and making video calls whilst the appellant and the children were mutually engaged in sexual activity.

9. The extent of the appellant’s interaction with some of his victims, in which there was extensive communication and reciprocation over the internet, blurred the significance of any demarcation between physical contact offending and communication offending.  Some of the communication offending was of a kind and intensity that warranted the conclusion that the appellant was maintaining an unlawful sexual relationship over the internet with the children concerned.  That is particularly important when evaluating the number of occasions of physical contact, because at times these occurred in a context where there were also communications and interactions over the internet. 

10. Apart from this broad overview, it is neither productive nor practicable to address each and every of the offences to which the appellant pleaded guilty.  Indeed, there was also a very large volume of uncharged offending for which the appellant was not sentenced but which tended to demonstrate the entrenched course of his criminal conduct. 

11. However, the offending concerning the identifiable victims can be summarised as follows:

    1.the appellant engaged in the physical or contact sexual abuse of three victims.  It will be necessary to return to the appellant’s conduct regarding these boys;

    2.the appellant engaged in communication offending with five identified victims to the extent that it was regarded as maintaining an unlawful sexual relationship with a child (now referred to as the sexual abuse of a child), contrary to s 50 of the CLCA;

    3.the appellant disseminated child exploitation material concerning two of his victims; and

    4.the appellant produced child exploitation material depicting another of his victims. 

12. The appellant usually met his victims online using various applications such as Grindr, Facebook and Kik.  The boys were aged in their early to mid-teens, predominantly between 13 and 15 years.  The evidence demonstrated that the appellant preyed upon and exploited their vulnerability for his own sexual gratification.  Many were exploring their sexuality for the first time.

13. In the case of the victim KP, the appellant pleaded guilty to one count of sexual abuse of a child where the unlawful sexual acts occurred whilst communicating with KP.  This included highly sexualised conversations and the exchange of images.  The appellant encouraged KP to engage in deviant conduct which the child recorded and distributed to the appellant.  There were a further 19 counts of disseminating images of KP to others, which included degrading conduct involving faeces.  The Court was told that the images of acts of this nature are said to be highly sought after in the internet child exploitation market.

14. However, in addition, the communications and images concerning KP demonstrated that the appellant had also engaged in physical sexual activity with KP outside the jurisdiction, in Sydney.  This unlawful sexual activity was not the subject of any charges.  The communications the subject of charges spanned 31 December 2017 and August 2020 (although the Information referred to 11 September 2020, a date after the appellant’s arrest).  KP was only 13 years when the offending commenced, and it continued until he was 15 or 16 years. 

15. It is difficult to overstate the breach of trust associated with the appellant’s dissemination of the images KP provided.  The victimisation of KP, and the potential for harm to be caused where the child exploitation material concerning him has been sent to others, is likely only to continue. 

16. KP’s victim impact statement described the profound impact the offending had on him, including the emotional and physical damage he experienced and the difficulties he encountered in his relationships with his family and others.  KP said that the trauma would be with him for the rest of his life.

17. For the offending involving KP, the sentencing judge commenced with a notional starting point of imprisonment for 14 years for the sexual abuse offending contrary to s 50 of the CLCA. For the dissemination of child exploitation material depicting KP, the sentencing judge indicated starting points of three years and six months for the aggravated offending, and either 12 months, or two years and nine months, for each basic form of the offending.

18. In relation to the victim DD, the appellant pleaded guilty to the sexual abuse of a child, contrary to s 50 of the CLCA, concerning numerous occasions of sexual communications online over approximately seven months between April and October 2017. Apart from explicit sexualised conversations, there were occasions when the appellant sent images of himself to DD and asked to meet with him.

19. The sentencing judge commenced with a notional starting point of nine years’ imprisonment for the s 50 offending involving DD.

20. In relation to the victim JA, the appellant pleaded guilty to the sexual abuse of a child, contrary to s 50 of the CLCA, having engaged in numerous acts of fellatio, anal intercourse and kissing. JA was 15 years at the time of the offending. The appellant met with him on three occasions over an 18-month period between July 2018 and December 2019. In addition, the appellant engaged in sexualised communications with JA, but these were not particularised as part of the s 50 offending.

21. The sentencing judge commenced with a notional starting point of 11 years’ imprisonment for the s 50 offending involving JA.

22. In relation to the victim JS, the appellant pleaded guilty to the sexual abuse of a child, contrary to s 50 of the CLCA, and this comprised sexualised communications, kissing, fellatio, and anal intercourse. Over an approximately three-year period, the appellant engaged in seven separate occasions of sexual activity with JS. JS was 14 years at the commencement of the offending and at the time of the first four occasions of sexual activity which included fellatio and anal intercourse. There were three further occasions when JS was 15 years.

23. The appellant also pleaded guilty to disseminating child exploitation material depicting JS by sending another man a video of the appellant engaging in anal sexual intercourse with JS. 

24. The sentencing judge commenced with a notional starting point of 12 years’ imprisonment for the s 50 offending involving JS, and for the disseminating child exploitation material offending, he identified starting points of imprisonment for two years and nine months, observing that these sentences would ordinarily have been cumulative.

25. In the case of the victim NH, the appellant pleaded guilty to the sexual abuse of a child, contrary to s 50 of the CLCA, which comprised sexualised conversations, kissing, fellatio and attempted anal intercourse. The appellant met with NH on two occasions when NH was 16 years. The appellant also engaged in sexualised online communications with NH during which NH sent the applicant images and videos of himself.

26. The sentencing judge commenced with a notional starting point of imprisonment for 11 years for the s 50 offending involving NH. The mother of NH provided a victim impact statement which described the devastating impacts of the offending on NH and his family.

27. As for the victim RC, the appellant pleaded guilty to two counts of producing child exploitation material, which comprised two images of the appellant and RC in bed together.  They were taken between August 2016 and February 2017 when RC was between 15 and 16 years.  There were other images of the appellant and RC found on the appellant’s mobile telephone, but these were not made the subject of any charges.  RC died at the age of 16 years in June 2017.  It was not suggested that there was any connection between the appellant’s offending and RC’s death.

28. The sentencing judge commenced with notional starting points of imprisonment for two years for each offence relating to RC and, were he to impose a single sentence, he would have made the sentences concurrent to some degree. 

29. In the case of the victim BP, the appellant pleaded guilty to communicating with the intention of making a child amenable to sexual activity.  BP was a friend of RC, who introduced him to the appellant.  The appellant exchanged messages with BP using Facebook which spanned 362 pages of text between September 2016 and March 2017.  These messages comprised sexualised conversations, the appellant sending BP adult pornography, as well as instructions on how to access adult pornography and make images of himself.  The sentencing judge commenced with a notional starting point of imprisonment for two years and six months for this offending.

1. Of the offending concerning communicating with a child for a prurient purpose, there were 87 victims and police identified only three.  Apart from KP, there were communications involving JM, who was encouraged to rub faeces on his penis and eat it.  When the child questioned what would happen if he did not comply, the appellant told him he would beat him when he saw him. 

2. Apart from disseminating child exploitation material depicting three identified victims, the appellant offered to traffic a child in the United States for sex.  The appellant told the child that he had access to “a network” and reassured him that the child would not be raped.  Though the child asked the appellant to arrange to traffic him for money, it was not alleged that this actually occurred.  Nonetheless, it was said to demonstrate the appellant’s attitude to offending of this kind, together with the vulnerability of the children with whom he made contact.

3. The child exploitation material sought out and possessed by the appellant was repulsive.  It involved infants, necrophilia, sadism, rape (including of infants) and the strangulation of a toddler.

4. The appellant learned that he was HIV positive in 2017 and had been taking medication since.  However, there were periods during the appellant’s contact offending when he was not taking his medication.  The sentencing judge found that engaging in unprotected penetrative sexual intercourse during those periods represented a serious aspect of the appellant’s offending. 

5. The appellant was HIV positive at the time of his contact offending against JA, JS and NH.  He engaged in unprotected sexual intercourse with each of them. 

6. Whilst none were infected with the virus, the sentencing judge found beyond reasonable doubt that the appellant put these victims at risk of emotional distress once they discovered that the appellant was HIV positive. 

7. The sentencing judge added, however, that he did not sentence the appellant for offending with which he was not charged.  The sentencing judge made no finding that the appellant’s conduct was aggravated by reason of his HIV status in circumstances where this did not form part of any charge laid against him.  For example, the sentencing judge made it clear that he was not sentencing the appellant for any offence of endangering life, creating a risk of harm or any similar offending.[3] 

   [3]     Sentencing Remarks, 17.

8. Nonetheless, the appellant’s communications with others about sourcing child exploitation material featured the appellant describing his desire to infect children with HIV. 

9. On the hearing of the appeal before this Court, counsel for the appellant accepted that there was little precedent for offending such as this, and that it was extremely serious, prolonged and depraved.  It is difficult indeed to compare sentences in other cases because few other cases involve the same degree of child sexual abuse offending across many different types of offences.

   The circumstances of the offender

10. At the time of sentence, the appellant was 41 years.  There was no relevant prior offending. 

11. The appellant grew up in South Australia.  His parents separated when he was very young, but he enjoyed positive relationships with both.  At the time of sentence, he was still in regular contact with them. 

12. The appellant finished school and had a good employment history.  He had made positive contributions to community sport. 

13. The appellant had been sexually abused from the age of 13.  He regularly engaged in sexual acts with adult males at a shopping centre.  The appellant had believed that these experiences were positive, but the evidence showed that they had distorted the appellant’s view of his own offending. 

14. At the time of his arrest, the appellant had been in a relationship with his fiancé for around nine months. That relationship had ended by the time of sentencing. 

15. The appellant had been a long-term user of illicit drugs, including methylamphetamine. The appellant said that he had no desire to continue using illicit drugs in the future. The appellant’s drug taking commenced when he was about 18 and by his mid-thirties, around 2016, he had developed an addiction to “ice”. This probably increased his libido and lowered his inhibitions. The sentencing judge allowed for the possibility that the appellant was experiencing the effects of illicit drug taking at the time of his offending, but he held that this could not have been the case every time.

16. Though the appellant told Mr Balfour, a psychologist, that he was no longer interested in adolescent males and was predominantly sexually attracted to males in their mid-20s to mid-30s, the sentencing judge did not accept that statement.  He specifically rejected the possibility that the appellant’s predominant sexual interest was confined to adult males. 

17. Mr Balfour diagnosed the appellant as satisfying the diagnostic criteria for homosexual paedophilic disorder, but Dr Haeney, a psychiatrist, did not accept that the appellant met those criteria.  Based on the reports from these experts and Dr Nambiar, a psychiatrist, the sentencing judge found that the appellant’s risk of re-offending was particularly high:[4]

    Were you not in custody you would pose a grave risk of engaging in sexual activity with adolescent males both in person and by communicating.  In my view, you would also be at grave risk of possessing, accessing and disseminating images of children. 

    On any view you need intensive treatment. No meaningful prediction can be made of your prospects of rehabilitation at this time.  You will need to participate in appropriate programs while in custody.

    There are reasons to be cautious about your insight into your offending. … I cannot accept that your sexual interest in children is behind you.

    [4]     Sentencing Remarks, 9.

18. During his interview with the appellant in April 2022, Dr Nambiar detected that the appellant had a distinct lack of empathy for his victims.  It was the opinion of Dr Nambiar that the appellant was minimising his own conduct and failing to accept responsibility. He had a distorted appreciation of the severity of his offending. 

19. However, around a week after this interview, the appellant was interviewed by Dr Haeney.  At that time, he expressed remorse and did not attempt to justify his offending.  Nonetheless, the appellant showed a tendency to blame his offending on his drug use. 

    The approach of the sentencing judge

20. The sentencing judge found that the appellant’s offending demonstrated his entrenched interest in sexual activity with children, specifically adolescent males, though it was necessary not to overlook that some of the offending involved images and videos of very much younger children.  The sentencing judge also found that the appellant had an interest in sharing his interest in child exploitation material with other like-minded adults with whom he communicated and exchanged child exploitation material over the internet. 

21. The sentencing judge found it difficult to determine whether any statements made by the appellant about his concern for his victims represented any positive developments in his thinking. 

22. As earlier mentioned, the sentencing judge indicated notional starting points for each of the offences, as was mandated by s 26(2a) of the Sentencing Act 2017 (SA) (the Sentencing Act).[5] The sentencing judge gave the appellant the considerable benefit of the maximum potential statutory reduction for every offence to which he had pleaded guilty.[6] 

    [5]     Those notional starting points, and the notional sentences following the application of available reductions for the appellant’s guilty pleas are set out in Annexure A. 

    [6]     Cf R v Bahrami (2020) 137 SASR 327.

23. The sentencing judge recognised that each of the offences to which the appellant had pleaded involved some form of sexual exploitation of a child.  The sentencing judge found that the appellant exploited boys by engaging in contact offending and by communicating with them, as well as by possessing, obtaining and disseminating child exploitation material.  The sentencing judge explained:[7]

    Child sexual offending in any form is abhorrent. When children are victims of sexual offending all of society is degraded. The court has a responsibility to demonstrate that such conduct is being taken seriously. The primary purpose of sentencing is the protection of the safety of the community.  Deterrence is important.

    Child sexual offending is abhorrent for many reasons. It exploits the most vulnerable in our community. Children are easily influenced and have only limited understanding of the nature, consequences and risks of sexual activity with adults.

    It can have life-long negative impacts upon children. It can cause emotional and psychological harm that can be more pervasive and permanent in its effect than any physical harm. That emotional harm can also be felt by the family and other caregivers of victims.

    An aspect of the material before me is a community impact statement.  …

    Sometimes problems occasioned by sexual abuse only emerge a long time after the conduct. Sometimes one act is enough.  Research suggests that victims of child sexual offences are at increased risk of health problems. Child sex offences have an economic cost, both to the child and the community more broadly. Public resources must be allocated to services to assist victims and others adversely impacted. …

    Social media and the internet have many benefits but you, and people like you, utilise the internet and social media to offend by engaging with children away from the oversight of parents and other caregivers.

    [7]     Sentencing Remarks, 5-6.

24. After setting the head sentence of 36 years, his Honour was required to sentence the appellant as a serious repeat offender and fix a non-parole period of four-fifths of the head sentence, being 29 years.[8]  The sentence was backdated to commence from the date the appellant was arrested and taken into custody in August 2020.

    The contentions of the parties

    [8]     Sentencing Act, s 54(1). No application was made under s 54(2) that the appellant should not be sentenced on this basis, see R v Karnage [2019] SASCFC 82; Knight v The Queen (2021) 138 SASR 156; Wallace v The King [2023] SASCA 127.

    The appellant’s contentions

25. In broad terms, the appellant took no issue with the approach taken by the sentencing judge, noting that he had dismissed a prosecution application for indefinite detention made pursuant to s 57 of the Sentencing Act.[9] The expert evidence that was led before the sentencing judge was relevant to that application as well as to sentencing more generally.

    [9]     R v Brooker [2024] SASC 84 (Kimber J).

26. First, the appellant’s submissions concentrated on the primary purpose for sentencing under the Sentencing Act, which is to protect the safety of the community.[10]  Whilst the appellant acknowledged that there were a number of secondary sentencing purposes, including punishment, denunciation, public recognition of the harm to the community and any victim and deterrence, it was submitted that the head sentence should be the minimum required to meet the relevant sentencing considerations. 

    [10]   Sentencing Act, s 3; see also Sentencing Act 1991 (VIC), s 6D.

27. The appellant identified the core of his argument as being that the protection of the safety of the community must ensure that an appellant has the best opportunity to rehabilitate and be able to be released at some future time.

28. Secondly, the appellant challenged the notional starting points for the five counts of the sexual abuse of a child, contrary to s 50 of the CLCA, as being excessive.

29. The appellant contended that these notional sentences and the high sentence which was imposed in this case demonstrated that the sentencing judge had taken into account punishment, deterrence and denunciation without considering these in light of the primary sentencing purpose, being the protection of the safety of the community. The appellant relied on the observations made in R v Dube, where King CJ had explained:[11]

    … there is no proven correlation between the level of punishment and the incidence of crime and there is no clear evidence that increased levels of punishment have any effect upon the prevalence of crime.

    …

    … the criminal justice system has always proceeded upon the assumption that punishment deters and that the proper response to increased prevalence of crime of a particular type is to increase the level of punishment for that crime. I think that courts have to make the assumption that punishments which they impose operate as a deterrent.

    [11]   R v Dube (1987) 46 SASR 118, 120.

30. Thirdly, as for personal deterrence, the appellant relied on s 57 of the Sentencing Act and the scope for an application to be made for indefinite detention if it was necessary to protect the safety of the community at the end of the appellant’s sentence.  As it was put by the appellant:[12]

    To impose a manifestly excessive head sentence with its mandatory non-parole period is contrary to the primary sentencing purpose because ultimately it undermines those aspects of the Sentencing Act such as rehabilitation and the capacity for section 57, 58 and 59 to have some real utility by placing too much emphasis on denunciation, general deterrent, personal deterrent. [sic]

    [12]   Appellant’s Written Submissions, [67].

31. Fourthly, the appellant also relied on the following observations by Brennan J in Channon v The Queen:[13]

    The necessary and ultimate justification for criminal sanctions is the protection of society from conduct which the law proscribes. Punishment is the means by which society marks its disapproval of criminal conduct, by which warning is given of the consequences of crime and by which reform of an offender can sometimes be assisted. Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose.

    [13]   Channon v The Queen (1978) 33 FLR 433, 437.

32. These submissions culminated in the proposition that the sentence which should have been imposed by the sentencing judge was the lowest available to meet the relevant sentencing objectives in the context of the requirement to protect the safety of the community. 

33. In circumstances where the appellant pleaded guilty, had himself been a victim of sexual abuse, and there was at least a suggestion that he was gaining a better understanding of the nature of his offending, it was submitted that the sentence was manifestly excessive.  The appellant submitted that, due to his age, he would not be able to apply for parole until he was in his late sixties, leaving him with little time left on release. 

    The respondent’s contentions

34. At the hearing of this appeal, counsel for the respondent advised that the cumulative total of all of the notional sentences in this case exceeded 330 years.  The respondent addressed the principles concerning a complaint of manifest excess, submitting that a very heavy or even a severe sentence is not, without more, manifestly excessive.[14] 

    [14]   Citing House v The King (1936) 55 CLR 499, 507 (Dixon, Evatt and McTiernan JJ).

35. The respondent criticised the reliance placed by the appellant on matters of “weight”.[15] The respondent also criticised the reliance placed on s 57 of the Sentencing Act, submitting that this was an irrelevant consideration. The respondent relied by analogy on the proposition that it is impermissible to consider the non-parole period when determining the appropriate head sentence.[16]  Similarly, the respondent relied on the decision of the High Court in Muldrock v The Queen, where it was held that the potential availability of an indefinite detention order was not a factor to be taken into account in mitigation of sentence.[17]

    [15]   Relying upon Police (SA) v Chilton (2014) 120 SASR 32, [17] (Kourakis CJ, with whom Lovell and Doyle JJ agreed)); R v Lutze (2014) 121 SASR 144, [47] (Vanstone and Parker JJ).

    [16]   DES v The Queen [2020] SASCFC 32, [147] (Doyle J, with whom Kourakis CJ and Livesey J agreed).

    [17]   Muldrock v The Queen (2011) 244 CLR 120, [61].

36. The respondent submitted that the notional starting points for the five counts of the sexual abuse of a child, contrary to s 50 of the CLCA, were neither excessive nor suggestive of error. Reliance was placed on decisions where the sentencing guideline laid down in R v D, even if not directly applicable, was regarded as relevant to sentencing for child sex offending.[18]

    [18]   R v D (1997) 69 SASR 413, 430 (Bleby J), R v Lian [2023] SASCA 122, [101]-[103] (Kourakis CJ) and R v Berry [2024] SASCA 116.

37. The respondent contended that the traditional distinction between physical contact offending and communication offending has become “increasingly blurred in the digital age”.[19] The perpetrators of sexual abuse now use online communications as the tool by which to both meet victims and enact their offending.  It was emphasised that the sexual abuse of children over a digital medium had the capacity to cause significant harm because it constitutes an invasion and violation of the child’s personal autonomy, bodily integrity and “gravely wounds their dignity”.[20]

    [19]   Respondent’s Written Submissions, [62].

    [20]   Relying upon R v Friesen [2020] 1 SCR 424, cited in R v Lian [2023] SASCA 122 (Kourakis CJ) and R v Symons (2018) 130 SASR 503. See also Baxter (A Pseudonym) v The King [2024] SASCA 64, [45] where it was said that there was no hierarchy of sexual penetration, and that the seriousness of every offence must be determined according to its individual circumstances.

38. The respondent referred to a sentence imposed in the District Court during 2019, following pleas of guilty to 50 offences against 11 young boys aged between 15 months and 13 years between June 2011 and January 2018.[21] The offending included indecent assaults, fellatio, and anal intercourse.  Two lived in South Australia and were identified, nine lived in Thailand.  Five of these boys had been identified.  The offender produced child pornography by recording the abuse and he used the internet to disseminate the material he produced.  In addition, the offender used the internet to access child pornography and to encourage another man to sexually offend against children outside Australia.

    [21]   R v Ruecha Tokputza, sentencing remarks delivered 17 May 2019 (Judge Chapman as she was then).

39. The offending comprised both State and Commonwealth offences. After reductions for the pleas of guilty, the offender was subjected to a State sentence of 14 years with a non-parole period of 11 years and three months, and a Commonwealth sentence of 29 years with a non-parole period of 16 years and nine months; the total effective sentence of imprisonment was 40 years and three months with a non‑parole period of 28 years.[22]

    [22]   R v Ruecha Tokputza, sentencing remarks delivered 17 May 2019 (Judge Chapman as she was then).

40. Whilst the respondent accepted that there were relevant differences between that case and this, the point of the reference was to demonstrate that there are examples of extreme sentences where sentences in the order of that which was imposed in this case have previously been imposed for serious offending with some similar features. 

    The determination of the application for permission to appeal sentence

41. The principles governing a complaint of manifest excess are well-known.  As this Court said in Hackett v The Queen:[23]

    The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case.[24] The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence.[25] Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed.[26] A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice.[27] It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[28] To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.[29]

    [23]   Hackett v The Queen [2021] SASCA 32, [8] (Kelly P, Lovell and Livesey JJA).

    [24]   Elias v The Queen (2013) 248 CLR 483.

    [25]   Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

    [26]   House v The King (1936) 55 CLR 499.

    [27]   Barbaro v The Queen (2014) 253 CLR 58, [61] (Gageler J).

    [28]   Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

    [29]   R v Pham (2015) 256 CLR 550, [56] (Bell and Gageler JJ).

1. The appellant must demonstrate that the sentence which was imposed is unreasonable or plainly unjust.  That is a conclusion which may be reached only after considering all matters relevant to fixing sentence, including the standards of sentence customarily observed concerning crimes of the type under consideration.[30]

   [30]   House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ); R v Morse (1979) 23 SASR 98, 99 (King CJ).

2. The essential difficulty with the approach adopted by the appellant in this case is that it is well recognised that a sentencing judge must arrive at a just sentence in the exercise of a broad sentencing discretion by having regard to sentencing considerations which may, at times, be conflicting.  It is a matter entirely for the sentencing judges as to the weight which is given to the relevant sentencing considerations.  As was recently explained by this Court:[31]

   Sentencing for serious offending is difficult.[32]  The sentencing court must address the defendant, the victims and the community, arriving at a penalty that is in accord with recognised principles and sentencing standards.  It is difficult to neatly and simply encapsulate the relevant considerations in remarks that can be understood by those to whom they must be directed.  Appeal courts have cautioned against over-long sentencing remarks and,[33] because a sentence is discretionary, there can never be any one “correct” sentence.  As well, few sentences will be welcomed by all concerned. 

   The paramount consideration when sentencing is to protect the safety of the community.[34]  There are usually other relevant considerations.  Secondary purposes include ensuring punishment, to publicly denounce and deter offending, and to recognise the harm done to the victim and to the community.[35]  As has been recognised, the relevant sentencing considerations do not usually point in the same direction and often point in different directions.  Some time ago it was said that “every court sentence should primarily be surveyed in the light of one test: is that the best thing to do in the interest of the community? – always remembering, of course, that the convicted person, despite his wrongdoing, remains a member of the community”.[36]

   The protection of the safety of the community can however also be served by rehabilitation and the imposition of a sentence which, whilst operating as a deterrent to others, recognises the need to properly reflect on a defendant’s capacity to make a worthwhile contribution to the community of which the defendant remains a member:[37]

   But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilized nations.

   [31]   R v Beaumont [2023] SASCA 128, [51]-[53] (Livesey P, Lovell and Bleby JJA).

   [32]   Klosowski v The Queen [2021] SASCA 85, [71]-[72] (Kelly P and Livesey JA).

   [33]   R v Reiner (1974) 8 SASR 102, 114 (Wells J); Lee v Western Australia [2022] WASCA 137, [51]-[55]; Gassy v The Queen [2023] SASCA 90, [18].

   [34]   Sentencing Act, s 3.

   [35]   Sentencing Act, s 4.

   [36]   Edmund Davies J, (1963) 19 The Magistrate 183.

   [37]   Yardley v Betts (1979) 22 SASR 108, 112-113 (King CJ, with whom Mitchell and Legoe JJ agreed).

3. On a number of occasions, this Court has emphasised the necessity to reflect on the approach taken to sentencing in cases involving the sexual abuse of children.  Those cases, as well as the findings made by the Royal Commission into Institutional Responses to Child Sexual Abuse, demonstrate that a number of assumptions often made about the sexual abuse of children require care if not reconsideration. That reflection extends to the need to take care with the language used by the courts when describing offending.  For example, it is not appropriate to make assumptions about whether children are at less risk of psychological or other harm where the offending does not involve what might be thought more serious, invasive physical contact by an offender.[38]

   [38]   Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) Preface and Executive Summary, 15-17.  See the references recently made to the Criminal Justice Report in R v Marshall [2023] SASCA 105, [62]ff.

4. Whilst the respondent emphasised the matters addressed by the Supreme Court of Canada in R v Friesen, this Court has explained that the approach taken in that case accords generally with the approach taken by the Court of Criminal Appeal in R v D,[39] as well as subsequently over the last 25 years in this Court and other intermediate appellate courts around Australia.[40]

   [39]   R v D (1997) 69 SASR 413.

   [40]   See, for example, R v MJJ; R v CJN (2013) 117 SASR 81, [84] (Kourakis CJ, with whom Vanstone J agreed); R v McIntyre (2020) 138 SASR 17, [58]-[60] (Doyle J, with whom Stanley and Hughes JJ agreed); R v Stain [2021] SASCA 70; R v Amos [2021] SASCA 126, [36]; Warner v The Queen [2022] SASCA 142, [76]-[79] (Livesey P), [118]-[123] (Doyle JA). See also R v MJR (2002) 54 NSWLR 368, [57] (Mason P); R v King [2009] NSWCCA 117, [40]-[41] (McClellan CJ at CL, with whom Grove and Howie JJ agreed). See, most recently, R v Lian [2023] SASCA 122, [99] (Kourakis CJ, with whom Lovell and Doyle JJA agreed); R v Harris [2023] SASCA 129, [38]-[43], [54] (Livesey P, Lovell and Bleby JJA).

5. To the extent that the appellant sought to emphasise community protection and rehabilitation at the expense of other relevant sentencing considerations, that approach must be rejected as contrary to principle, particularly the instinctive synthesis by which a sentence must be determined in the exercise of a broad sentencing discretion having regard to all relevant sentencing considerations.[41]

   [41]   Ryan v The Queen (2001) 206 CLR 267, [33] (McHugh J); Wong v The Queen (2001) 207 CLR 584, [75] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen (2005) 228 CLR 357, [139] (Kirby J); Hurt v The King [2024] HCA 8, [39] (Gageler CJ and Jagot J).

6. There is no reason to think that there was in this case any failure to have proper regard to the protection of the safety of the community.  There were a number of features associated with that primary sentencing consideration which it was necessary to bring to account in the circumstances of this case.  Community safety is not only to be considered from the perspective of ensuring that an offender who poses a grave risk to the community, or identified sections of it, is imprisoned and thereby unable to cause harm.  In an appropriate case, the community can also be protected by a sentence which promotes an offender’s rehabilitation.

7. Nonetheless, the imposition of an appropriate sentence of imprisonment serves broader objectives. Many are reflected as secondary sentencing considerations under the Sentencing Act. 

8. For example, whatever the doubts expressed from time to time about the correlation between imprisonment and the incidence of crime, the terms of the Sentencing Act and the practice of the criminal courts require that the assumption be made that punishment operates as a deterrent.[42] 

   [42]   R v Dube (1987) 46 SASR 118, 120 (King CJ).

9. Quite apart from their effect on deterrence, sentences are the subject of publicly available sentencing remarks, as well as the judgments of this Court.  When media attention is given to offending and to the sentences imposed for it this may, at times, serve to reassure the community. The correlation between crime, punishment and community attitudes is reflected in a number of features of the criminal law relating to sentencing, including the assumption that particular sentences can have the effect of undermining public confidence in the administration of justice.[43]  By contrast, appropriate sentences can instil a degree of community confidence in the administration of justice. That is promoted by reasons which explain the facts and circumstances of any case, and the way in which sentencing principles must be applied. 

   [43]   See, for example, in connection with prosecution sentence appeals, R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ); R v Yaroslavceff [2022] SASCA 123, [32] (Livesey P and David JA) [70]-[72] (Doyle JA); R v Henderson (2023) 142 SASR 507, [40]-[42] (Livesey P and David JA); and R v Harris [2023] SASCA 129, [46]-[51] (Livesey P, Lovell and Bleby JJA).

10. What is an appropriate sentence must, of course, be determined according to proper sentencing principles and the particular circumstances of the offending and the offender when arriving at a just and proportionate sentence.  What is an appropriate sentence is not determined by ill-informed clamour for ever harsher sentences.[44]

    [44]   Cf, Klosowski v The Queen [2021] SASCA 85, [67]-[73] (Kelly P and Livesey JA).

11. In addition, and to the extent that the appellant urged that the sentencing judge or this Court should have regard to the availability of indeterminate detention under s 57 of the Sentencing Act, that would involve an error of principle. To Muldrock v The Queen, [45] one may add the recent decision of the High Court in R v Hatahet, where it was held that it was wrong in principle to consider whether parole would or might be refused when determining a head sentence.[46] The majority in that case referred to Hoare v The Queen.[47] In that case the High Court emphasised that it was necessary for the sentencing court to consider whether the sentence of imprisonment exceeds that which can be justified as appropriate or proportionate to the gravity of the crime, considered in light of its objective circumstances, rather than by reference to the possibility of future events, such as any future remission of sentence.[48]

    [45]   Muldrock v The Queen (2011) 244 CLR 120, [61].

    [46]   R v Hatahet (2024) 98 ALJR 863, [7] (Gordon A-CJ, Steward and Gleeson JJ).

    [47]   Hoare v The Queen (1989) 167 CLR 348.

    [48]   R v Hatahet (2024) 98 ALJR 863, [23] (Gordon A-CJ, Steward and Gleeson JJ), citing Hoare v The Queen (1989) 167 CLR 348, 354.

12. The criticisms made by the appellant of the notional sentences imposed in this case for child sexual abuse under s 50 of the CLCA should likewise be rejected. The most important reason is that whether a sentence is manifestly excessive must be determined primarily by reference to the overall sentence, the total effective sentence, rather than by any notional sentence that might or might have been adopted by the sentencing judge as a starting point when determining the head sentence.[49] 

    [49]   Cuong v The Queen [2021] SASCA 89, [2]-[8] (Lovell and Bleby JJA), [60]-[62] (Livesey JA); Nguyen v The Queen (2022) 140 SASR 554, [131] (Livesey P and Stanley AJA), cf [197]-[198] (Doyle JA). The submission may lack utility, White v The Queen (2022) 141 SASR 398, [58] (Lovell, Bleby and David JJA).

13. Nonetheless, a starting point or notional sentence may help to identify where the sentencing court may have taken an erroneous view of the offending.  An erroneous notional sentence may be suggestive of error, supporting a submission about manifest error in the overall head sentence.[50] The degree of assistance derived from a notional sentence will depend on the circumstances of the case, including whether the sentencing judge identified the notional sentence, whether there are many or just a few notional sentences, and whether the sentencing judge exposed the extent to which considerations of concurrency and totality were taken into account in arriving at the overall sentence.

    [50]   Wakefield v The King [2023] SASCA 95, [55] (Livesey P, Lovell and David JA); Warner v The King 142 SASR 275, [109] (Livesey P).

14. In connection with the appellant’s challenge to the notional sentences set for the sexual abuse of a child offending contrary to s 50 of the CLCA, one proposition appeared to be that the circumstances of this case did not warrant application of the sentencing standard in R v D.[51]  It will be recalled that that sentencing standard addressed child sex offending involving unlawful sexual intercourse by an offender in a position of trust and authority over a period of two months, where a starting point of imprisonment for 10 years was selected for cases involving children aged 12 years or older, and 12 years for children under 12 years.[52]

    [51]   R v D (1997) 69 SASR 413.

    [52] But which now operates where children are aged 14 years or older, or under 14 years, following the 2005 amendments to s 49(1) of the CLCA; see Warner v The King (2022) 142 SASR 275, [77] (Livesey P), [121] (Doyle JA); Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA), s 11.

15. One difficulty with the appellant’s submission is that though the sentencing standard in R v D applies directly to sexual abuse cases involving a course of conduct which includes unlawful sexual intercourse with a child committed by a person in a position of trust and authority, it remains relevant in other cases, including those involving the sexual abuse of children in contravention of s 50 of the CLCA.[53]  It both informs and assists sentencing for sexual offending involving children more generally.[54] 

    [53]   In the same way as the sentencing standard in R v Young (2016) 126 SASR 141 may be relevant even where it is not directly applicable, see R v Howell [2018] SASCFC 12, [32] (Kourakis CJ, Nicholson and Doyle JJ); Da Silva v The Queen [2020] SASCFC 66, [43] (Livesey J, with whom Kourakis CJ and Stanley J agreed).

    [54]   R v D (1997) 69 SASR 413, 423 (Doyle CJ); Warner v The King (2022) 142 SASR 275, [79]-[80] (Livesey P), [118] (Doyle JA); Burgoyne v The King (2024) SASCA 61, [21] (Livesey P, Bleby and David JJA).

16. Accordingly, even if the sentencing standard in R v D is not directly applicable, it may still be relevant and influential in cases sharing features similar to those which underpin the sentencing standard, including cases under s 50 of the CLCA. That is to say, in cases of child sexual abuse involving sexual intercourse where the child may be thought vulnerable to exploitation by an offender who, though not in any formal position of trust and authority, is nonetheless able to manipulate and exercise influence over the child.

17. In cases such as these, as in R v D, it is necessary for sentences involving child sexual offending to reflect the “feeling of outrage and revulsion in the community”,[55] to ensure that the court does what it can to address the likelihood of serious harm to victims and the insidious effect of this kind of offending on their families and the community more generally. It has repeatedly been observed that there is a risk of lifelong harm to many victims. As was recognised in R v D, and since by the courts and by Royal Commissions and other inquiries, the community now recognises that there are a number of means by which vulnerable children can and should be protected from the risk and harm of predatory sexual abuse. Though the criminal law should be seen as one of a number of available responses, it is often given prominence. 

    [55]   R v D (1997) 69 SASR 413, 423 (Doyle CJ).

18. It is necessary for sentencing courts to make it clear that the community does not tolerate the sexual abuse of children, whether in person or over the internet, including by the pernicious production, possession and dissemination of child exploitation material. Appeal courts must likewise do what they can to protect children and the community, by ensuring that sentences deter, denounce and punish offenders and, by their reasons, give due recognition to the interests of victims and their families. This must be done recognising that the prevailing standards of punishment reflect a hardening in community attitudes and increased maximum penalties for offending of this kind.[56]

    [56]   R v Brandon [2024] SASCA 9, [30] (Livesey P, Doyle and David JJA);  R v Bradley [2024] SASCA 56, [61] (Lovell, Bleby and David JJA).

19. It is obvious that the sentencing judge made reductions for both concurrency and totality, though these were not identified.

20. As mentioned, the tally of all notional sentences exceeded 330 years. Indeed, even if one confined the analysis to the offending concerning the sexual abuse of a child under s 50 and the victims KP, DD, JA, JS and NH, the tally of the notional starting points before reduction for the appellant’s pleas was 57 years. As has been explained, this offending comprised a combination of physical contact and reciprocated internet communications, quite apart from the production and possession of child exploitation material concerning a number of children. It was also necessary to bring to account the extensive offending concerning the possession and dissemination of child exploitation material, more generally.

21. The serious and insidious effect of child exploitation material, especially in a case such as this, ought not be underestimated.[57]

    [57]   See the relevant considerations discussed in R v Nankivell [2022] SASCA 87 and R v Brandon [2024] SASCA 9.

22. It is clear that his Honour strove to impose a just sentence which was proportionate to the circumstances of the offending and the offender.  In R v Blain, King CJ explained how sentences for multiple offences must reflect both each crime and the “total course of conduct involved”:[58]

    [G]enerally speaking it is desirable that the sentencing judge should impose for each of the crimes charged in the counts in the information a punishment which reflects the degree of criminality involved in the facts of that particular crime and that a punishment commensurate with the total course of conduct involved should be achieved by accumulating the sentences on the charges in the information to a suffıcient degree to reach a total punishment which is the proper punishment for the course of conduct disclosed both by the charges in the information and the matters asked to be taken into account. I do not say that is the only way in which it can be done, but it seems to me that it is the most appropriate way.

    [58]   R v Blain (1984) 115 LSJS 270, 273; see also Warner v The King (2022) 142 SASR 275, [113]-[115] (Livesey P), [163]-[166] (Doyle JA).

23. Finally, it is necessary to address the appellant’s submission that the sentence was simply too high having regard to the expert evidence suggesting that he was less likely to present any risk once he reached 60 years, and where any sentence needed to provide some scope for rehabilitation. 

24. The appellant’s submission fails to recognise the breadth of the sentencing discretion and the necessity to accommodate a range of sentencing considerations.  It is appropriate to recall what Deane J said in Channon v The Queen:[59]

    In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances. Unless a particular fact or circumstance or objective is properly relevant or a relevant consideration either in the determination of that question or in the assessment of wider considerations which are properly relevant to such determination, it will be irrelevant.

    [59]   Channon v The Queen (1978) 33 FLR 433, 451.

25. Whilst it may well be true to say that the appellant is less likely to pose a risk to children once he reaches 60 years, that does not mean that he will then present no risk.  The sentencing judge made it clear that he doubted the appellant’s insight and remorse.  One could not be at all confident about the appellant’s prospects for rehabilitation and reform. 

26. More importantly, this is not a case where it can be said that the relevant sentencing considerations will have obviously been spent before 36 years, obviating the need to impose a sentence of that magnitude.  The profound seriousness and breadth of the offending, the risk of harm caused to nearly 100 child victims, their families and to the broader community, and the evident need for the court to punish and denounce such brazen and depraved criminal conduct, must also be reflected. 

1. In R v Hunter, King CJ explained the necessity for punishment to be “fairly proportionate to the crime” and in accord with “the prevailing standards of punishment”:[60]

   It is necessary, however, that the time required to be spent in prison be adequate punishment for the crime committed.  The basic concepts of justice which underlie the criminal law require that the punishment be fairly proportionate to the crime in accordance with the prevailing standards of punishment.

   [60]   R v Hunter (1984) 36 SASR 101, 103 (King CJ).

2. It is true that there are few sentences involving child sexual offending of the magnitude of this sentence in this jurisdiction.  Equally, there are few cases where the criminal conduct has been so serious and so harmful, involving so many victims. 

3. During argument, the Court gave the example of R v McCoole, where the offending involved 18 offences of serious child sexual abuse together with offending involving the production, possession and dissemination of child pornography. Most of the offences were State offences but two were Commonwealth offences. The offending was both depraved and repulsive, involving children as young as 18 months and as old as 14 years, by a man who was generally, though not invariably, in a position of trust and authority with respect to children in State care. 

4. In 2015, the sentencing judge in R v Shannon McCoole imposed a total sentence of 35 years and fixed a non-parole period of 24 years.[61]  A few years later, the appellant was re-sentenced following cooperation given to the authorities, which resulted in a reduction to the head sentence of three years and a reduction to the non-parole period of two years. 

   [61]  R v Shannon McCoole, sentencing remarks delivered 7 August 2015 (Judge Rice).

5. Whilst there are obvious differences between that case and this, like R v Ruecha Tokputza, R v Shannon McCoole demonstrates that heavy sentences of imprisonment may be appropriate where the predatory child sexual abuse offending is of the most serious kind.

6. In all of these circumstances, the appellant has failed to identify any error associated with the overall sentence imposed.  No attempt was made to criticise the approach taken to concurrency or totality, insofar as those matters could be discerned from the sentencing remarks.[62]  Indeed, no attempt was made to attack the notional sentences for most of the offending, including the offences involving the production, possession and dissemination of child exploitation material, in circumstances where a considerable volume of that material is of the most serious kind, within categories 4 and 5 of the Oliver scale.

   [62]   See generally, Edmonds (A Pseudonym) v The Queen [2022] SASCA 11 (Livesey P, Doyle and David JJA); Warner v The King (2022) 142 SASR 275 (Kourakis CJ, Livesey P and Doyle JA).

7. Whilst the sentence in this case is rightly described as heavy, a firm response from the sentencing court and a heavy sentence were appropriate where the sentencing judge was confronted by such serious offending and an offender who had, at best, uncertain prospects for reform.

   Conclusion

8. Permission to appeal should be granted but the appeal dismissed.

   
   

   Annexure A

   Schedule of Offences and Discounts

Count	Offence	Notional starting point	Maximum reduction for guilty plea	Notional sentence after reduction
Information 1 (SCCRM-22-15)
1	Agg Possess CEM	2 years, 6 months	30%	1 year, 9 months
2	Possess CEM	2 years		1 year, 4 months, 25 days
3	Agg Possess CEM	3 years		2 years, 1 month, 7 days
4	Possess CEM	2 years		1 year, 4 months, 25 days
10	Agg Disseminate CEM	3 years, 6 months		2 years, 5 months, 13 days
11	Disseminate CEM	2 years, 6 months		1 year, 9 months
15	Agg Disseminate CEM	3 years, 6 months		2 years, 5 months, 13 days
Information 2 (SCCRM-22-14)
2	Produce CEM	2 years	25%	1 year, 6 months
3	Produce CEM	2 years	25%	1 year, 6 months
4	Communicate	2 years, 6 months	25%	1 year, 10 months, 16 days
5	Sexual Abuse of a Child	14 years	25%	10 years, 6 months
6	Communicate	1 year, 6 months	10%	1 year, 4 months, 7 days
7	Agg Disseminate	3 years, 6 months	10%	3 years, 1 month, 25 days
9	Agg Disseminate	3 years, 6 months	10%	3 years, 1 month, 25 days
10	Agg Obtain Access CEM	1 year	15%	10 months, 7 days
11	Communicate	1 year, 6 months	10%	1 year, 4 months, 7 days
12	Communicate	1 year, 6 months	10%	1 year, 4 months, 7 days
13	Disseminate	2 years, 9 months	10%	2 years, 5 months, 22 days
14	Communicate	1 year, 6 months	25%	1 year, 1 month, 16 days
15	Communicate	1 year, 3 months	10%	1 year, 1 month, 16 days
16	Disseminate	2 years, 9 months	25%	2 years, 23 days
17	Agg Obtain Access CEM	2 years, 6 months	25%	1 year, 10 months, 16 days
18	Agg Obtain Access CEM	2 years, 6 months	35%	1 year, 7 months, 16 days
19	Agg Disseminate	3 years, 6 months	10%	3 years, 1 month, 25 days
20	Disseminate	2 years, 6 months	10%	2 years, 3 months
21	Communicate	1 year, 6 months	10%	1 year, 4 months, 7 days
22	Agg Obtain Access CEM	3 years	15%	2 years, 6 months, 19 days
23	Disseminate	2 years, 9 months	25%	2 years, 23 days
24	Communicate	1 year, 6 months	10%	1 year, 4 months, 7 days
25	Agg Obtain Access CEM	2 years	15%	1 year, 8 months, 13 days
26	Agg Disseminate	3 years, 6 months	10%	3 years, 1 month, 25 days
27	Agg Disseminate	3 years	10%	8 years, 8 months, 25 days
28	Agg Disseminate	3 years, 6 months	25%	2 years, 7 months, 16 days
29	Communicate	1 year, 6 months	10%	1 year, 4 months, 7 days
30	Agg Obtain Access CEM	2 years, 6 months	10%	2 years, 3 months
31	Disseminate	2 years, 9 months	25%	2 years, 23 days
32	Agg Disseminate	3 years, 6 months	10%	3 years, 1 month, 25 days
33	Disseminate	2 years, 9 months	10%	2 years, 6 months, 19 days
34	Agg Obtain Access CEM	3 years	15%	3 years, 4 months, 25 days
35	Obtain Access	1 year	15%	10 months, 7 days
36	Disseminate	2 years, 6 months	10%	2 years, 3 months
Information 3 (SCCRM-22-16)
1	Communicate	2 years, 6 months	15%	2 years, 1 month, 16 days
2	Communicate	2 years, 6 months	15%	2 years, 1 month, 16 days
3	Communicate	2 years, 6 months	15%	2 years, 1 month, 16 days
4	Disseminate CEM	2 years, 6 months	15%	2 years, 1 month, 16 days
5	Disseminate CEM	3 years	15%	2 years, 6 months, 19 days
6	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
7	Communicate	1 year	15%	10 months, 7 days
8	Communicate	2 years, 6 months	15%	2 years, 1 month, 16 days
9	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
10	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
11	Communicate	1 year	15%	10 months, 7 days
12	Communicate	2 years	15%	1 year, 8 months, 13 days
13	Communicate	2 years, 6 months	15%	2 years, 1 month, 16 days
14	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
15	Communicate	2 years	15%	1 year, 8 months, 13 days
16	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
17	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
18	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
19	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
20	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
21	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
22	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
23	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
24	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
25	Disseminate CEM	2 years, 6 months	15%	2 years, 1 month, 16 days
26	Agg Disseminate	2 years, 6 months	15%	2 years, 1 month, 16 days
27	Communicate	1 year	15%	10 months, 7 days
28	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
29	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
30	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
31	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
32	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
33	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
34	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
35	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
36	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
37	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
38	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
39	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
40	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
41	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
42	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
43	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
44	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
45	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
46	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
47	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
48	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
49	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
50	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
51	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
52	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
53	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
54	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
55	Communicate	2 years	15%	1 year, 8 months, 13 days
56	Communicate	2 years	15%	1 year, 8 months, 13 days
57	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
58	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
59	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
60	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
61	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
62	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
63	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
64	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
65	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
66	Obtain Access	1 year	25%	9 months
67	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
68	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
69	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
70	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
71	Agg Disseminate	3 years, 6 months	15%	2 years, 11 months, 22 days
72	Disseminate	2 years, 6 months	25%	2 years, 1 month, 16 days
73	Communicate	2 years	15%	1 year, 8 months, 13 days
74	Communicate	2 years	15%	1 year, 8 months, 13 days
75	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
76	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
77	Agg Disseminate	3 years, 6 months	15%	2 years, 11 months, 22 days
78	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
79	Agg Disseminate	3 years 6 months	15%	2 years, 11 months, 22 days
80	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
81	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
82	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
83	Communicate	2 years	15%	1 year, 8 months, 13 days
84	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
85	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
86	Disseminate CEM	6 months	15%	5 months 4 days
87	Obtain Access	1 year	25%	9 months
88	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
89	Agg Disseminate	3 years, 6 months	15%	2 years, 11 months, 22 days
90	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
91	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
92	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
93	Disseminate	2 years, 6 months	15%	2 years, 1 month, 16 days
94	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
95	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
96	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
97	Communicate	2 years	15%	1 year, 8 months, 13 days
98	Disseminate	2 years, 9 months	15%	2 years, 4 months, 2 days
99	Agg Disseminate	2 years	15%	1 year, 8 months, 13 days
100	Disseminate	2 years, 9 months	15%	2 years, 4 months, 2 days
101	Agg Disseminate	2 years	15%	1 year, 8 months, 13 days
102	Disseminate	1 year	15%	10 months, 7 days
103	Disseminate	1 year	15%	10 months, 7 days
104	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
105	Agg Disseminate	3 years, 6 months	15%	2 years, 11 months, 22 days
106	Agg Obtain Access	2 years, 6 months	25%	1 year, 10 months, 16 days
107	Agg Disseminate	3 years, 6 months	15%	2 years, 11 months, 22 days
108	Agg Disseminate	3 years, 6 months	15%	2 years, 11 months, 22 days
109	Disseminate	1 year	15%	10 months, 7 days
110	Agg Disseminate	3 years, 6 months	15%	2 years, 11 months, 22 days
111	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
112	Communicate	2 years	15%	1 year, 8 months, 13 days
113	Obtain Access	1 year, 6 months	25%	1 year, 1 month, 16 days
114	Communicate	2 years	15%	1 year, 8 months, 13 days
115	Communicate	2 years	15%	1 year, 8 months, 13 days
116	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
117	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
118	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
119	Disseminate	2 years, 9 months	15%	2 years, 4 months, 2 days
120	Agg Disseminate	3 years, 6 months	15%	2 years, 11 months, 22 days
121	Agg Disseminate	3 years, 6 months	15%	2 years, 11 months, 22 days
122	Agg Produce CEM	3 years	15%	2 years, 6 months, 9 days
123	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
124	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
125	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
126	Obtain Access CEM	2 years	25%	1 year, 6 months
127	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
128	Obtain Access CEM	1 year	25%	9 months
129	Agg Disseminate	3 years, 6 months	15%	2 years, 11 months, 22 days
130	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
131	Communicate	1 year, 6 months	15%	1 year, 3 months, 10 days
132	Disseminate	2 years, 9 months	15%	2 years, 4 months, 2 days
133	Disseminate	2 years, 9 months	25%	2 years, 23 days
134	Sexual Abuse of Child	9 years	15%	7 years, 7 months, 25 days
135	Sexual Abuse of Child	11 years	15%	9 years, 4 months, 7 days
136	Sexual Abuse of Child	12 years	15%	10 years, 2 months, 13 days
137	Sexual Abuse of Child	11 years	15%	8 years, 3 months
138	Agg Possession CEM	2 years, 6 months	25%	1 year, 10 months, 16 days
139	Agg Possession CEM	2 years, 6 months	25%	1 year, 10 months, 16 days
140	Possession CEM	1 year, 6 months	25%	1 year, 1 month, 16 days
141	Possession CEM	1 year, 6 months	25%	1 year, 1 month, 16 days

Annexure B

Oliver Scale – National Child Exploitation Material Category

Category Representation	Guide
1.     CEM – No Sexual Activity	Depictions of Children with No Sexual Activity – Nudity, surreptitious images showing underwear nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination
2.      CEM – Child Non-Penetrate	Non-Penetrative Sexual Activity Between Children or Solo Masturbation By A Child
3.      CEM – Adult Non-Penetrate	Non-Penetrative Sexual Activity between Child(ren) and Adult(s). Mutual masturbation and other non-penetrative sexual activity.
4.      CEM – Child\Adult Penetrate	Penetrative Sexual Activity between Child(ren) or between Child(ren) and Adult(s) – Including, but not limited to, intercourse, cunnilingus and fellatio.
5.      CEM– Sadism\Bestiality\Child Abuse	Sadism, Bestiality or Humiliation (urination, defecation, vomit, bondage etc) or Child Abuse as per Criminal Code Act 1995 (Cth).
6.      CEM – Animated or Virtual	Anime, cartoons, comics and drawings depicting children engaged in sexual poses or activity.