Cappo v The King - [2025] SASCA 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CAPPO v THE KING
[2025] SASCA 55
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David)
22 May 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - OTHER OFFENCES AND MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
The appellant pleaded guilty to 15 offences. The offending included the appellant committing sexual offences against seven victims by asking them to provide sexual images and videos of themselves in exchange for monetary payment. This conduct was the subject of 10 counts contrary to s 63B(3)(a) of the Criminal Law Consolidation 1935 (SA) (‘the CLCA’). The appellant then disseminated some of those images to another victim, which was the subject of two counts contrary to s 63(b) of the CLCA. The appellant was also in possession of child exploitation material, and pleaded guilty to two counts of aggravated possession, and one count of basic possession, contrary to s 63A(1)(a) of the CLCA.
For the offences committed contrary to ss 63B(3)(a) and 63(b) of the CLCA, the sentencing Judge imposed a single sentence of three years and six months’ imprisonment. For the offences contrary to s 63A(1)(a) of the CLCA, the sentencing Judge imposed a single sentence of two years’ imprisonment and ordered 18 months be served concurrently with the prior sentence, resulting in a total head sentence of four years’ imprisonment. The appellant was sentenced as a serious repeat offender, and a non-parole period of three years, two months and 13 days was fixed.
The appellant seeks permission to appeal against sentence on two grounds. First, the appellant contends the sentencing Judge failed to take into account the developmental disorders and generalised anxiety disorder suffered by the appellant when assessing the weight to be afforded general deterrence. Secondly, that the sentencing Judge erred in her approach to the question of whether the offending occurred in ‘prescribed circumstances’ for the purposes of s 96(10) and s 71(6) of the Sentencing Act 2017 (SA).
Held, per the Court, granting permission to appeal on both grounds, but dismissing the appeal:
1.The sentencing Judge had regard to all relevant factors when concluding that the offending did not occur in prescribed circumstances under s 96(10) or, in the alternative under s 71(6). Observations as to the correct approach when determining whether the circumstances of the offending are such that it is appropriate to suspend a sentence or make a home detention order.
2.The evidence did not establish that the appellant’s developmental disorders and poor mental health were causally connected to his offending. There was no error by the sentencing Judge when assessing the weight to be afforded general deterrence.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cappo v The King

Details

AGLC: Cappo v The King [2025] SASCA 55
Case: [2025] SASCA 55
Decision Date: 22 May 2025

CaseChat Overview and Summary

The appellant, Cappo, appealed against a sentence imposed by a sentencing judge. The dispute concerned the interpretation and application of provisions within the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA), which significantly altered the sentencing options available for certain sexual offences. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The primary legal issues before the court were whether the sentencing judge erred in their assessment of "prescribed circumstances" under sections 71(6) and 96(10) of the Sentencing Act. Specifically, the court had to determine whether a sentencing judge, when assessing these prescribed circumstances, could consider a defendant's personal circumstances, such as their mental condition or emotional maturity, as providing context for the offending. Furthermore, the court needed to consider whether the full range of sentencing considerations should be taken into account when determining the appropriateness of suspending a sentence or making a home detention order.

The Full Court reasoned that while the focus of the inquiry into prescribed circumstances under sections 71(6) and 96(10) is on the victim's age and the age difference between the defendant and the victim, these provisions do not limit the consideration of offending circumstances solely to those factors. The court held that subjective matters, such as a defendant's motive, their appreciation of the gravity of the offending in light of their mental health or emotional maturity, and the relationship between the defendant and the victim, can inform the circumstances of the offending. These subjective factors are not neatly separable from the objective features of the offending and can be considered when assessing whether it is appropriate to suspend a sentence or make a home detention order. The court noted that there are no rigid boundaries regarding what subjective factors may inform the circumstances of the offending.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On the other hand, the respondent contends the sentencing Judge had regard to all relevant matters when assessing whether the offending occurred in prescribed circumstances and no error has been demonstrated. Moreover, the respondent contends that the evidence did not establish that the appellant’s mental condition was causally connected to the offending, and this was not a basis upon which to moderate the principles of general deterrence. In the alternative, the respondent submits that even if this Court finds a specific error, it should reach the conclusion that no different sentence should be imposed and dismiss the appeal. Consideration The Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA) introduced the current ss 71(6) and 96(10). That Act prohibits sentencing judges from imposing other than immediate custodial sentences for many of the sexual offences contained within the CLCA. Both ss 71 and 96 of the Sentencing Act contain a two-tiered structure of sexual offences. For the more serious offences, a sentencing judge is prohibited from imposing a suspended sentence or making a home detention order. For other sexual offences, a sentencing judge is precluded from imposing a suspended sentence or making a home detention order unless ‘prescribed circumstances’ are established. Before considering the appellant’s complaint under this ground of appeal, it is necessary to consider the nature of the test for establishing prescribed circumstances under ss 71(6) and 96(10). As outlined earlier, the first and third criteria are relatively straight forward and require that the defendant was at the time of the offence aged 20 years or less; and not, at the time of the offence, a person in a position of authority in relation to the victim. However, the second criteria which requires a sentencing judge to consider whether the circumstances of the offending, including (but not limited to) the victim’s age, and the age difference between the defendant and the victim, are such that it is ‘appropriate’ to suspend the sentence or make a home detention order, raises two issues of principle. First, whether a sentencing judge when assessing the circumstances of the offending can have regard to a defendant’s personal circumstances and other subjective matters as providing the context in which the offences were committed or as informing the circumstances of the offending. Secondly, when assessing whether the circumstances of the offending are such that it is appropriate to impose a suspended sentence or make a home detention order, whether regard should be had to the full range of sentencing considerations. As to the first issue, under ss 71(6) and 96(10), the focus of any inquiry as to the circumstances of the offending must be on the victim’s age and the age difference between the defendant and the victim. However, the words used in ss 71(6) and 96(10) do not limit a consideration of the circumstances of the offending to those matters. Moreover, any such assessment may (and often will) be informed by other subjective matters which cannot be neatly extricated from the objective features of the offending. These may include matters such as a defendant’s motive for the offending, his or her ability to appreciate the gravity of the offending in the context of a defendant’s mental health or emotional maturity, the relationship between the defendant and the victim including any personal history between the parties, and other factors personal to a defendant which may inform the circumstances of the offending. These matters are but examples and there are no hard and fast rules as to the metes and bounds of what subjective factors may inform the circumstances of the offending.