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.

3.The sentencing Judge’s conclusion that the circumstances of the offending were such that it was not appropriate to suspend the sentence or make a home detention order, and that the offending did not occur in ‘prescribed circumstances’, was not unreasonable or plainly unjust.

Criminal Law Consolidation Act 1935 (SA) ss 63, 63(b), 63A, 63A(1)(a), 63B, 63B(3)(a); Sentencing Act 2017 (SA) ss 3, 9, 26, 53(1)(b), 71, 71(2)(b)(ii), 71(2)(b)(ii)(A), 71(5), 71(6), 96, 96(3)(a), 96(3)(ba), 96(9), 96(10); Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA); Statutes Amendment (Child Sex Offences) Act 2022 (SA), referred to.
Glade v The Queen [2020] SASCFC 83; House v The King (1936) 55 CLR 499; Muldrock v The Queen (2011) 244 CLR 120; R v Hronopoulos (2017) 269 A Crim R 551; R v Monks (2019) 133 SASR 182; R v Wiskich (2000) 207 LSJS 431, considered.

CAPPO v THE KING
[2025] SASCA 55

Court of Appeal – Criminal: Livesey P, Doyle and David JJA

1. THE COURT: This is an appeal against sentence.

2. From September 2021 until August 2022, the appellant committed sexual offences against seven victims by asking them to provide images and videos of themselves via the Snapchat and/or Instagram application in exchange for payment. He then disseminated some of those images to another victim.  He was also later found in possession of a quantity of child exploitation material on his mobile phone and desktop computer.

3. At the time of the first charged offence, the appellant was aged 18 years and four months.[1]  The last four offences occurred after the appellant turned 19 years of age on 30 April 2022.[2]   The victims were variously aged from 14 years and six months to 16 years and 10 months at the time of the offending.

   [1]     Counts 1, 4, 5, 6, 10 on District Court Information and file DCCRM-23-018618 and Counts 2, 17, 19, 23, 25, 33 on Magistrates Court Information MCCRM-23-023848 (on file DCCRM-23-032154) occurred while the appellant was aged 18 years.

   [2]     Counts 9, 11 and 12 on District Court Information DCCRM-23-018618 and Count 1 on Magistrates Court Information MCCRM-23-023848 (on file DCCRM-23-032154).

4. Following his guilty pleas, the appellant was convicted of the following offences brought on two Informations dated 17 July 2023 (‘the District Court Information’)[3] and 28 August 2023 (‘the Magistrates Court Information’):[4]

   · nine counts of procuring a child to engage in, or submit to, sexual activity, contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) which then carried a maximum penalty of 10 years’ imprisonment;[5]

   · one count of communicating with an intention to procure a child to engage in, or submit to, sexual activity, contrary to s 63B(3)(a) of the CLCA which then carried a maximum penalty of 10 years’ imprisonment;

   · two counts of disseminating child exploitation material contrary to s 63(b) of the CLCA, which then carried a maximum penalty of 10 years’ imprisonment;

   · two counts of aggravated possessing child exploitation material contrary to s 63A(1)(a) of the CLCA, which then carried a maximum penalty of seven years’ imprisonment; and

   · one count of possessing child exploitation material contrary to s 63A(1)(a) of the CLCA, which then carried a maximum penalty of five years’ imprisonment.

   [3]     District Court Information DCCRM-23-018618.

   [4]     Magistrates Court Information MCCRM-23-023848.

   [5]     Introduction of the Statutes Amendment (Child Sex Offences) Act 2022 (SA) increased the maximum penalty for s 63B(3)(a) to 12 years; s 63(b) to 15 years; and s 63A(1)(a) to 12 years.

5. In relation to the offences committed contrary to ss 63B(3)(a) and 63(b) of the CLCA involving seven victims, the sentencing Judge utilised s 26 of the Sentencing Act2017 (SA) (‘the Sentencing Act’). After nominating notional sentences for each offence and making the relevant reductions on account of the guilty pleas, a penalty of three years and six months’ imprisonment was imposed.

6. For the offences relating to possessing child exploitation material, the sentencing Judge again utilised s 26 and imposed one sentence of two years’ imprisonment. Her Honour ordered that 18 months’ imprisonment of that sentence be served concurrently with the earlier sentence, resulting in a total effective head sentence of four years’ imprisonment.

7. The appellant fell to be sentenced as a serious repeat offender pursuant to s 53(1)(b) of the Sentencing Act. As such, the non-parole period was required to be at least four-fifths of the head sentence. A non-parole period of three years, two months and 13 days was fixed.[6]

   [6]     The sentencing Judge set out the individual sentences for each offence in a chart which is annexed to these reasons. There was no challenge to any of the individual sentences imposed.

8. The appellant sought permission to appeal on two grounds: first, the sentencing Judge erred by failing to take into account the appellant’s mental conditions when assessing the weight to be given to general deterrence (Ground 2); and secondly, erred by failing to find that the offending occurred in ‘prescribed circumstances’ for the purposes of s 96(10) and, in the alternative, s 71(6) of the Sentencing Act (Ground 3). Ground 1 was abandoned before the appeal hearing.

9. For the reasons which follow, we grant permission to appeal on both grounds but dismiss the appeal.

   Factual circumstances of the offending

10. As mentioned earlier, the appellant’s offending involved seven victims, each of whom, after conversations with the appellant via the Snapchat and/or Instagram application, sent him either sexualised still images or videos, or both, in return for the payment of money.  In addition, on two occasions the appellant communicated with two of the victims about potentially having sexual intercourse with him in exchange for large sums of money.  On a further two occasions, videos provided to the appellant by one of the victims were disseminated to another victim with a request that she replicate the sexual acts.  One of those videos was then circulated more widely throughout one of the victim’s school, albeit not by the appellant.

11. Following the circulation of the video, police were notified and conducted a search of the appellant’s home and belongings.  They seized his mobile phone and desktop computer and located a significant quantity of category 1 and category 2 child exploitation material on those devices.

12. Turning now to the facts relating to each victim whom the sentencing Judge referred to as victim one to victim seven.  For clarity, we will also include the relevant initials of each victim.

    Victim 1 - ZR

13. At the time of the offending, ZR was aged 15 years.  Around August or September 2021, the appellant sent a friend request to ZR through the Instagram application.  They did not previously know each other.  The appellant asked ZR if she wanted money, and she said she did.  Their conversation then moved to the Snapchat application.

14. On 18 September 2021, the appellant asked ZR to send him an image of her breasts in return for payment of $60.  He asked that her face be visible in the images, and after some further discussion, ZR sent her bank details to the appellant. The appellant paid ZR $45, and she sent him three images of her breasts without her face visible.  The appellant created screenshots of the images.  The appellant then sent ZR a further $100 (Count 1 on the District Court Information).

15. Over the following few months, the appellant asked ZR to send him videos on approximately three further occasions.  ZR declined each time.  The appellant responded angrily.  ZR felt pressured to provide further images and videos because of the appellant’s persistence.

16. Around March or April 2022, the appellant sent another victim, SS, a short video of ZR exposing her buttocks and asked her to send him similar images which SS declined to do (Count 6 on the District Court Information).

17. On 14 April 2022, ZR received a message from the appellant asking for more videos from her.  On this occasion, the appellant asked ZR to film a video of herself naked, on her hands and knees.  ZR sent the appellant a video which depicted her exposed breasts, buttocks and vagina.  Following this, the appellant deposited $300 into ZR’s bank account (Count 4 on the District Court Information).

18. In May 2022, the appellant sent this same video of ZR (the subject of Count 4) to SS, and requested she recreate the video which SS declined to do (Count 9 on the District Court Information).  As mentioned earlier, this video was later circulated at ZR’s school bringing the matter to the attention of the police.  There was no suggestion that the appellant disseminated the video beyond SS. 

    Victim 2 - LA

19. At the time of the offending, LA was aged around 16 years.  The appellant ‘added’ LA to his Snapchat account, and after some initial conversations, offered her money in exchange for naked images of herself.

20. On 26 September 2021, LA sent the appellant images of her breasts in exchange for $450 paid over two transactions (Count 25 on the Magistrates Court Information).  The appellant also made six payments to LA between 17 September 2021 to 9 October 2021 in exchange for naked images or videos of herself (uncharged conduct).

21. Eventually, LA attempted to stop complying with the appellant’s requests. The appellant responded by threatening to disseminate the images she had already sent him (uncharged conduct). 

    Victim 3 - SS

22. At the time of the offending, SS was aged 14 to 15 years.  Around October 2021, ZR told SS that the appellant would pay her for naked images sent via Snapchat.  In November 2021, the appellant and SS had a conversation about her sending him an image of her buttocks in exchange for money.  SS did so and the appellant paid her $250 via the bank account of a third party (Count 5 on the District Court Information).

23. Between December 2021 and February 2022, the appellant requested SS send him further nude images which she declined.

24. An exchange of messages between the appellant and SS was located on the appellant’s mobile phone.  In one of the messages, the appellant asked SS how much it would cost to have sex with her, offering her $5,000 (Count 10 on the District Court Information).  There was no suggestion that the appellant, in fact, engaged in any sexual activity with SS.

25. The appellant threatened to disseminate the images SS had sent to him unless she continued to provide him with naked images of herself (uncharged conduct).

    Victim 4 - AB

26. At the time of the offending, AB was aged around 16 years.  The appellant added her as a friend on Snapchat and they were also linked on Instagram. On 10 November 2021, he sent her a total of $100 over three transactions.  AB then sent the appellant several images of herself in her underwear (Count 19 on the Magistrates Court Information).

    Victim 5 - LH

27. At the time of the offending, LH was aged around 16 years.  In late 2021, LH sent the appellant images and videos of her exposing her breasts and vagina, and of her masturbating on multiple occasions, in exchange for $280 (Count 2 on the Magistrates Court Information). In addition, between December 2021 and February 2022, the appellant paid LH amounts ranging from $10 to $300 in exchange for images and videos of herself naked (uncharged conduct).

28. On 7 January 2022, the appellant invited LH to stay the night.  LH asked him for his address, which he provided to her.  She also asked if he had ‘a grand’, and the appellant responded that he would offer her $10,000 in exchange for 10 acts of sexual intercourse (Count 33 on the Magistrates Court Information).

    Victim 6 – AP

29. At the time of the offending, AP was aged around 14 years.  AP added the appellant as a friend on Snapchat, having been told by ZR that he would pay her for naked images.  On 29 January 2022, AP sent the appellant two images with her breasts exposed and covering her vagina in exchange for $280 (sent in two transactions) (Count 17 on the Magistrates Court Information).

    Victim 7 - MR

30. At the time of the offending, MR was aged around 15 years.  MR added the appellant as a friend on Snapchat, having been told by AP that he would be pay her for naked images.  On 28 March 2022, MR sent the appellant an image of herself wearing a bra and shorts in exchange for $50 (Count 23 on the Magistrates Court Information).

    Possession of child exploitation material

31. As mentioned earlier, a quantity of child exploitation material was located on the appellant’s mobile phone and desktop computer.  There were 179 videos of category 1 material[7] (Count 11 on the District Court Information) and 151 videos of category 2 material[8] (Count 12 on the District Court Information) found on his mobile phone.  This included videos of the victims ZR and SS.  On his computer, there were 1,852 images of category 1 material (Count 1 on the Magistrates Court Information) and 158 images of category 2 material (uncharged conduct).

    [7]     Category 1 child exploitation material is defined as involving a pre-pubescent child, under 13 years of age.

    [8]     Category 2 child exploitation material is defined as involving a child under 18 years, but over 13 years of age.

32. The category 1 child exploitation material found in the appellant’s possession included, but was not limited to, images depicting children as young as three years old performing sexual acts with adults and other children, as well as children posing naked.

    Personal circumstances

33. At the time of sentencing, the appellant was aged 20 years.  He had no prior convictions.  The appellant had been working as a fish filleter in his family’s business at the time of the offending, and he continued to work there whilst on bail prior to being sentenced.

34. As a child, the appellant was diagnosed with a verbal language disorder, and auditory and memory processing difficulties.  There were various dated reports before the sentencing Judge to this effect. 

35. The appellant experienced social difficulties throughout his schooling which culminated in him being homeschooled in year seven.  He completed year 10 at the age of 17, whereupon he commenced working for his family’s business.

36. After his arrest for the present offences, the appellant consulted with a clinical psychologist, Paul Kassapidis. Mr Kassapidis provided two reports to the sentencing Judge and, in between the provision of those two reports, gave oral evidence.

37. In his first report dated 6 November 2023, Mr Kassapidis noted that the appellant had both verbal comprehension and expression difficulties and diagnosed him with a generalised anxiety-based disorder, which he considered accounted for the appellant’s diminished self-confidence, social awkwardness and low self-esteem issues. This had negatively impacted on his capacity to communicate effectively and form meaningful relationships.

38. Mr Kassapidis said that the appellant told him that the offending consisted of ‘being stupid by accepting images through Snapchat’.  Mr Kassapidis considered that the appellant had resorted to an excessive use of social media, not only as a means of entertainment, but as a way of reducing the social isolation he felt, whilst also obtaining a degree of social approval from his peers.  He also noted that the appellant had ‘expressed a basic understanding of both the social and emotional consequences of his involvement within the criminal justice system and the seriousness of accessing inappropriate images’.

39. Mr Kassapidis said that he was ‘reasonably optimistic’ that the appellant was unlikely to re-offend.

40. The prosecution challenged the ‘possible foundation’ for Mr Kassapidis’ opinion in the first report as to the appellant’s level of insight, remorse and prospects of rehabilitation. Essentially, the prosecution did not accept the appellant’s explanation as to how he came to receive the sexual images from the victims and emphasised that Mr Kassapidis had not been advised of all the charged offences, namely the appellant’s possession of a large quantity of child exploitation material or the dissemination offence.

41. The appellant continued to see Mr Kassapidis throughout the sentencing process.  Mr Kassapidis considered the appellant was making progress and referred to his engagement with psychological counselling, as well as his sessions with a personal trainer three times per week which also contributed to his improved mental and physical health.

1. In a second report dated 14 June 2024, Mr Kassapidis said that the appellant acquired the child exploitation material naively; and expressed an opinion that he was motivated to commit the offences for emotional connection as ‘a result of profound loneliness rather than a reflection of an evolving ephebophilic condition’ (or sexual interest in mid to late adolescents).  The prosecution challenged both aspects of this report on the basis the findings were inconsistent with the victims’ accounts as to their interaction with the appellant.  It was also inconsistent with the quantity and nature of the child exploitation material in his possession.

2. The sentencing Judge received positive character references and two letters of apology from the appellant regarding his conduct. His family has remained supportive of him.

   Sentencing remarks

3. The sentencing Judge commenced her remarks by outlining the offending against the seven victims and the offences concerning his possession of child exploitation material.   Her Honour then considered the victim impact statements provided by three of the seven victims, who each described feelings of embarrassment and anxiety, as well as the impact of the offending on their schooling and families.  Her Honour also referred to a community impact statement from the Commissioner for Victims’ Rights regarding the social impact of this type of offending on the broader community.

4. The sentencing Judge then outlined the appellant’s personal circumstances. As to the first report of Mr Kassapidis, her Honour afforded little weight to his conclusions as to the appellant’s remorse on the basis that he had not been provided with the complete factual basis for sentence, nor advised that the appellant had also pleaded guilty to offences of possessing and disseminating child exploitation material.

5. In relation to the second report, while the sentencing Judge accepted much of the content of that report, including the appellant’s improved insight into the impact of the offending on the victims and his remorse, she did not accept that the appellant was motivated to offend to fulfil a need for emotional connection.  Rather, her Honour found that the appellant was motivated by a need for sexual gratification.  Her Honour said:

   ... He also described your offending conduct as inappropriate internet behaviours that were seeking to remedy your own unfulfilled need for emotional connection, that appeared to have been the result of profound loneliness.

   The conclusion that you were seeking emotional connection is irreconcilable with your communications with the victims of the procuring and communication charges, that were focused on obtaining sexualised images and videos.  I do not accept that the driver of your offending, which involved the obtaining of videos and images in exchange for money, was a need for emotional connection.  The only rational explanation is that it was born out of a need for sexual gratification. …  

6. This finding was challenged on appeal on the basis that it was not open to the sentencing Judge to reject Mr Kassapidis’ opinion on this topic. 

7. The sentencing Judge accepted that the appellant was willing to continue to engage with treatment, was genuinely remorseful and was showing positive signs of rehabilitation.  However, she considered that the appellant had ‘further to go in acknowledging and developing a deeper understanding of the active and manipulative steps [he] took regarding the offences of procuring a child for sexual activity’.

8. The sentencing Judge considered that personal deterrence was not a significant factor in sentencing, and that the appellant had good prospects of rehabilitation with a low risk of re-offending.  Her Honour referred to the principles of general deterrence and the paramountcy to be afforded the protection of the safety of the community.

9. The sentencing Judge then turned to consider whether a sentence of imprisonment should be imposed, and if so, the question of whether the offending was committed in ‘prescribed circumstances’ such as to permit a suspended sentence or in the alternative, a home detention order.  As mentioned earlier, her Honour ultimately determined that it was necessary to impose a term of imprisonment and declined to suspend the sentence or make a home detention order.

   Appeal grounds

10. The appellant advances two grounds of appeal. They are as follows:

    (1)The sentencing Judge erred by failing to take into account the appellant’s auditory processing disorder and verbal language disorder, and the ongoing difficulties underpinned by those conditions, when assessing the weight to be afforded general deterrence (Ground 2). 

    (2)The sentencing Judge erred by failing to find that the offending occurred in ‘prescribed circumstances’ for the purposes of s 96(10) and, in the alternative, under s 71(6) of the Sentencing Act (Ground 3).

    Particulars

    The sentencing Judge erred by failing to find that the circumstances of the offending, including the appellant’s age, and the age difference between the appellant and the victims, were such that it was appropriate that the sentence be suspended or, alternatively, that a home detention order be made.

11. The focus of the appellant’s submissions, at the appeal hearing, was the contention that the sentencing Judge did not properly consider whether the offending occurred in ‘prescribed circumstances’ (Ground 3).  The complaint that the sentencing Judge failed to have regard to the appellant’s mental conditions, in effect, devolved to a particular of this contention.  For that reason, it is convenient to begin with appeal Ground 3, and as part of a consideration of that ground, address the complaint which underpins Ground 2.  

    Ground 3: Prescribed circumstances

12. Before the sentencing Judge, defence counsel submitted that a non-custodial sentence was appropriate, or in the alternative, any term of imprisonment imposed should be suspended or served on home detention.

13. Section 96 of the Sentencing Act permits a sentence of imprisonment to be suspended if the court ‘thinks that good reason exists for doing so’. Relevantly, subsection 96(3)(ba) provides that a sentence of imprisonment may not be suspended if the defendant is being sentenced ‘as an adult for a serious sexual offence’. A ‘serious sexual offence’ is relevantly defined in s 96(9):

    (9)     In this section—

    …

    serious sexual offence means—

    (a)     —

    (i)any of the following offences under the Criminal Law Consolidation Act 1935 where the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years:

    …

    (F)an offence under section 60 (procuring sexual intercourse);

    …

    (ii)any of the following offences under the Criminal Law Consolidation Act 1935 where the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years:

    …

    (D)an offence under section 63 (production or dissemination of child exploitation material), other than an offence that occurred in prescribed circumstances;

    (E)an offence under section 63B (procuring child to commit an indecent act etc), other than an offence that occurred in prescribed circumstances; or

    …

    (Emphasis added.)

14. The meaning of ‘prescribed circumstances’ is provided by s 96(10):

    (10)For the purposes of this section, an offence occurred in prescribed circumstances if—

    (a)     the defendant was, at the time of the offence, 20 years of age or less; and

    (b)     the circumstances of the offending, including the victim’s age and the age difference between the defendant and the victim, are such that it is appropriate that the sentence be suspended; and

    (c)     the defendant was not, at the time of the offence, a person in a position of authority in relation to the victim.

15. In relation to home detention orders, where a defendant is being sentenced as an adult for a serious sexual offence, s 71(2)(b)(ii) of the Sentencing Act precludes a sentencing judge from ordering that the sentence be served on home detention unless the offence is a ‘prescribed serious sexual offence’ that occurred in ‘prescribed circumstances’.[9]

    [9]     Sentencing Act 2017 (SA) s 71(2)(b)(ii)(A).

16. Under s 71(5), a ‘serious sexual offence’ includes offences under ss 63 and 63B of CLCA that have a maximum prescribed penalty of imprisonment for at least five years. As mentioned earlier, the prescribed maximum penalty for ss 63(b) and 63B(3)(a) is 10 years’ imprisonment. A ‘prescribed serious sexual offence’ includes offences under both ss 63 and 63B of the CLCA.

17. Relevantly, the term ‘prescribed circumstances’ is defined under s 71(6) in much the same terms as s 96(10):

    (6)For the purposes of this section, an offence occurred in prescribed circumstances if—

    (a)     the defendant was, at the time of the offence, 20 years of age or less; and

    (b)     the circumstances of the offending, including the victim’s age and the age difference between the defendant and the victim, are such that it is appropriate that a home detention order be made; and

    (c)     the defendant was not, at the time of the offence, a person in a position of authority in relation to the victim.

18. It is evident that in the present case it was not open to the sentencing Judge to impose a suspended sentence or make a home detention order for those offences contrary to ss 63B(3)(a) and 63(b) unless satisfied each offence was committed in ‘prescribed circumstances’.

19. As to the three criteria, it was common ground before the sentencing Judge, and on appeal, that the first and third criteria for ‘prescribed circumstances’ were satisfied in this case.  The appellant was 18 or 19 years of age at the time of each offence, and there was no suggestion that he was in a position of authority in respect of any of the victims.  The issue when determining whether the offences were committed in prescribed circumstances was the second criteria, and whether having regard to the circumstances of the offending, including the victim’s age and the age difference between the appellant and the victim, it was appropriate to order a suspended sentence or, in the alternative, make a home detention order.

20. In relation to the offences of possessing child exploitation material contrary to s 63A of the CLCA, there was no statutory bar to the imposition of a suspended sentence or home detention order. However, if an immediate custodial sentence was imposed for any of the other offences, the sentencing Judge was precluded from suspending the sentence or making a home detention order pursuant to s 96(3)(a) of the Sentencing Act.

21. As outlined earlier, the sentencing Judge imposed a custodial sentence and decided that it was not appropriate to suspend that sentence or order that it be served on home detention.  Relevantly, her Honour said:

    … A sentence of imprisonment imposed for those offences cannot be suspended nor can it be ordered to be served on home detention unless the offending occurred in prescribed circumstances.  One of the relevant criteria is that the defendant was 20 years of age or less at the time of the offence.  You satisfy that aspect of the criteria.  Another is that the defendant was not a person in a position of authority at the time in relation to the victim, you also satisfy that aspect of prescribed circumstances.  That means it is open to me to suspend the term of imprisonment imposed for those offences if the circumstances of that offending including the victim’s age and the age difference between the two of you are such that it is appropriate that the sentence be suspended.

    … I have separately considered prescribed circumstances in relation to each charge but in doing so I note that each offence was in the context of multiple offences that followed a similar pattern.  Each offence of procuring a child to engage in or submit to sexual activity involved the inducement of money and your motive behind the dissemination of child exploitation material was for the creation of child exploitation material for your own sexual interests.  I do not consider that the age difference or anything about the circumstances of any of the offences makes it appropriate to suspend the sentence or order that it be served on home detention.

22. The appellant contends that the sentencing Judge erred in determining that the circumstances of the offending were such that it was not appropriate to impose a suspended sentence or make a home detention order.  In that regard, the appellant makes the following submissions:

    ·     The sentencing Judge, in the determinative part of her reasons, cited above, did not refer to the age of the victims.

    ·     There was no analysis of the interaction of the relevant considerations with one another.

    ·     The sentencing Judge’s conclusion was reached without reference to, or consideration of, countervailing circumstances including the appellant’s youth, immaturity and relatively limited intellectual and social capacity for his age.

    ·     There was no consideration of whether any different analysis was required when considering the question of whether it was appropriate to suspend the sentence, as compared to whether it was appropriate to make a home detention order.

23. During the appeal hearing, the appellant also raised two specific errors made by the sentencing Judge in reaching her conclusion as to ‘prescribed circumstances’.  First, the appellant contends that her Honour erred in finding that the appellant’s motive for the offending was his own sexual gratification rather than for a desire for emotional connection contrary to the opinion of Mr Kassapidis.  Secondly, the appellant submits that the sentencing Judge failed to have regard to relevant considerations, namely his delayed development and mental disorders which were causally related to the offending.  This complaint was also the subject of appeal Ground 2.     

24. It is the appellant’s contention that these matters, whether taken individually or in combination, demonstrate an erroneous approach to an assessment of whether the offending was committed in ‘prescribed circumstances’.  Accordingly, this Court is obliged to independently consider the exercise of the sentencing discretion.

25. 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

26. 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.

27. 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.

28. 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).

29. 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. 

30. 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.

31. 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.

32. 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.

33. As to the second issue, a sentencing judge when determining whether the circumstances of the offending are such that it appropriate to suspend the sentence or make a home detention order is required to undertake that exercise by having regard to the full range of sentencing considerations.  That is so because of the individualised nature of the sentencing exercise.  For example, one can imagine a situation where two defendants commit sexual offences in very similar circumstances (having regard to their age and the difference in age between each defendant and victim) but having regard to their respective personal circumstances, including matters such as the antecedents of each defendant and differing prospects of rehabilitation, a suspended sentence or home detention order may be  appropriate for one defendant and not the other defendant.  In addition, sentencing objectives such as principles of general and personal deterrence, the paramountcy to be provided the safety of the protection of the community, and indeed condign punishment, may weigh more heavily when sentencing one defendant when compared with another.  It follows that a sentencing judge is required to have regard to the complete range of sentencing considerations when considering whether the circumstances of the offending make it appropriate to suspend a sentence or make a home detention order. 

34. It was common ground between the parties that the question of whether the offending occurred in ‘prescribed circumstances’ under ss 96(9) and 71(2)(b)(ii)(A) involves the exercise of a discretion. This follows from the use of the word ‘appropriate’ as the criterion for suspension or home detention, in circumstances where, as we have said, it encompasses the full range of sentencing considerations. Accordingly, any challenge to a finding that a prescribed serious sexual offence or serious sexual offence occurred in ‘prescribed circumstances’ is governed by the principles of appellant restraint as articulated in House v The King.[10]

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

1. We turn now to consider the appellant’s contention that the sentencing Judge adopted an erroneous approach to her consideration of ss 71(6) and 96(10), and whether the circumstances of the offending were such it was appropriate to suspend the sentence or impose a home detention order. As developed during the appeal hearing, the appellant submits that her Honour did not undertake the necessary balancing exercise and failed to have regard to various relevant considerations, in particular the age of the victims and the appellant’s social immaturity, delayed development and mental health.

2. It is true, as the appellant submits, that the sentencing Judge, in the determinative part of her reasons, cited above, did not refer to each victim’s age. This was clearly a relevant consideration. Nor did she refer to the appellant’s relative immaturity and delayed development when considering the age difference between the appellant and each victim. The appellant’s immaturity and developmental delays were matters which informed the circumstances of the offending to the extent that he did not bring the knowledge and worldliness of a more mature adult to his offending and to a limited extent, this reduced his moral culpability.  

3. However, the sentencing Judge by this stage of her remarks, had already outlined the factual circumstances of each offence including the age of each victim, and the time over which the offending took place.  Her Honour had described, in a careful and thorough manner, the appellant’s personal circumstances including his age, auditory processing disorder and verbal language disorder, generalised anxiety-based disorder, as well as other matters which called for leniency in sentencing such as his remorse, rehabilitation and low risk of re-offending.  While it would have been preferable if the sentencing Judge had briefly referenced the more significant of those subjective matters informing the circumstances of the offending when directly considering the issue of prescribed circumstances, we are satisfied from the sentencing remarks, read as a whole, that she had regard to all relevant factors when concluding that the circumstances of the offending were not  such that it was appropriate to suspend the sentence or impose a home detention order. 

4. As to the aligned complaint that it was not open to the sentencing Judge to reject the psychological opinion of Mr Kassapidis that the appellant’s offending arose out of his profound loneliness and need for emotional connection, we would reject that contention.  We are satisfied that it was open to the sentencing Judge to find that this aspect of Mr Kassapidis’ opinion was inconsistent with the transactional nature of the offending, and the appellant’s actions in resorting to coercion and threats when some of the victims refused to provide further sexualised material.  As her Honour found, the offending and the interaction between the appellant and each victim did not bespeak of a desire for emotional connection.

5. In addition, the quantity and nature of other child exploitation material found in the appellant’s possession (that is, the other material not depicting the victims of the ss 63B(3)(a) and 63(b) offences but unknown children) supported a finding that the appellant was motivated by sexual gratification.

6. During sentencing submissions, the prosecutor challenged Mr Kassapidis’ opinion on this topic.  It was not necessary for the prosecution to further cross‑examine Mr Kassapidis to establish the evidentiary foundation upon which the sentencing Judge ultimately rejected this aspect of his second report as the basis for doing so was implicit in the unchallenged aspects of the victims’ accounts and the sentencing materials.

7. In relation to the contention that the appellant’s auditory processing disorder, verbal language disorder and generalised anxiety-based disorder was causally linked to his offending such that he was not an appropriate medium for making an example to others and general deterrence should have been given less weight, we do not agree.  This contention was also the subject of Ground 2.

8. There was no dispute that the appellant suffered an auditory processing disorder and verbal language disorder which caused him to experience difficulties with language and resulted in bullying.  This in part led to the appellant being homeschooled from year seven resulting in his social isolation from his peers and the appellant spending long periods of time on his computer.  There was also no dispute that he suffered from a generalised anxiety-based disorder and had done so prior to the offending (although his condition was exacerbated by the present court proceedings). 

9. It is well established that where a defendant’s impaired mental condition is causally linked to the commission of offences, a defendant becomes a less appropriate medium for making an example to others and the principles of general deterrence may be afforded less weight.[11]  However, in the present case, the  evidence did not establish that the appellant’s developmental disorders and mental health were causally connected to his offending.  Whilst there was material to suggest that the appellant’s homeschooling rendered him socially isolated, there was no material to establish that his social isolation caused him to engage in the offences of procuring, disseminating or possessing child exploitation material.  The evidence only went so far as to establish that the appellant’s social isolation meant that he spent a large amount of time on his computer and viewing adult pornography, and as a general proposition, young developing minds can confuse adult pornography with ‘the real world’.[12]  In addition, the appellant gave no explanation to Mr Kassapidis for the offending.  Indeed, the appellant was unable to discuss it with Mr Kassapidis without becoming upset.

   [11]   Muldrock v The Queen (2011) 244 CLR 120 at [53]-[55]; R v Monks (2019) 133 SASR 182 at [37]-[38] (Doyle J, Peek and Parker JJ agreeing); R v Hronopoulos (2017) 269 A Crim R 551; R v Wiskich (2000) 207 LSJS 431.

   [12]   Appeal Book, pp 200-201 (evidence of Mr Kassapidis, T 50-51).

10. Nor did the evidence go so far as to establish that the appellant had a lack of understanding of the wrongfulness of his actions.  Indeed, defence counsel did not submit that the appellant’s developmental disorders or impaired mental health rendered him a less appropriate medium for making an example to others such as to moderate the applicability of the principles of general deterrence.  Rather, after the prosecutor made submissions that the evidence did not support such a conclusion, there was no counter submission put by defence counsel.[13]

    [13]   Appeal Book, pp 229-231.

11. It is important to recognise that the sentencing Judge, as part of her summary and consideration of the appellant’s personal circumstances, explicitly had regard to his developmental disorders and their adverse impact on his schooling, noting that he led an ‘isolated life’ with limited social interaction with his peers.  Her Honour also had regard to the appellant’s poor mental health at the time of the offending, and the treatment received by him since the offending, concluding that the appellant had developed insight into his offending and that his risk of re‑offending was low.  In that context, her Honour also considered that personal deterrence was not a significant factor in sentence.

12. To the extent that the appellant complains that the sentencing Judge’s conclusion that the offending was not committed in prescribed circumstances was unreasonable or plainly unjust, we also reject that contention.  It is to be accepted that there were aspects of the circumstances of the offending which supported an argument that it was appropriate for the sentencing Judge to impose a home detention order or suspended sentence.  The appellant’s offending was committed when he was 18 or 19 years of age, none of the victims were aged under 14 years, and he was relatively immature at the time of the offending.  More broadly, he had expressed his remorse for the offending, shown increasing insight into the impact of his offending on others and he was at low risk of re-offending such that personal deterrence did not need to be afforded much weight.

13. However, those matters needed to be considered in the context of the more egregious aspects of this offending, namely that each offence was committed in the context of a course of multiple offences, some of the offending involved the exchange of child exploitation material for money, and other offences were accompanied by threats and inducements, thus providing less scope for leniency. The appellant was also found in possession of a large quantity of disturbing child exploitation material.

14. The sentencing Judge was also required to have regard to principles of general deterrence and the paramountcy to be afforded the protection of the safety of the community.[14]  It was important that the sentence deterred young persons from the misuse of social media applications given the harm that the proliferation of child exploitation material over social media forums can cause to young persons.[15]  This was highlighted by the community impact statement tendered to the sentencing Judge, and by the harm caused to ZR, AB and MR, as described in their victim impact statements.  These were sentencing considerations which militated strongly against a finding of prescribed circumstances and the imposition of other than an immediate custodial sentence.

    [14]   Sentencing Act 2017 (SA) ss 3, 9.

    [15]   Glade v The Queen [2020] SASCFC 83 at [30] (Livesey J, Kelly and Bleby JJ agreeing).

15. Ultimately, we are not satisfied that the sentencing Judge’s decision to find that the offending did not occur in ‘prescribed circumstances’ and to impose an immediate custodial sentence was unreasonable or plainly unjust.

16. We grant permission to appeal on both grounds but dismiss the appeal.

    Orders

    1.   Permission to appeal is granted on both grounds of appeal.

    2.   The appeal is dismissed

    Annexure A: DCCRM-23-018618

Count	Charge	Victim	Maximum Penalty	Reduction Applicable	Sentence	Reduced Sentence
1	Procuring a child under the age of 17 years to engage in or submit to sexual activity	1	10 years imprisonment	5%	1 year and 6 months	1 year, 5 months and 4 days
4	Procuring a child under the age of 17 years to engage in or submit to sexual activity	1	10 years imprisonment	5%	1 year and 8 months	1 year and 7 months
5	Procuring a child under the age of 17 years to engage in or submit to sexual activity	3	10 years imprisonment	5%	1 year and 6 months	1 year, 5 months and 4 days
6	Dissemination of child exploitation material	3	10 years imprisonment	5%	1 year and 10 months	1 year, 8 months and 28 days
9	Dissemination of child exploitation material	3	10 years imprisonment	5%	1 year and 10 months	1 year, 8 months and 28 days
10	Communicate with the intention of procuring a child under the age of 17 years to engage in or submit to sexual activity	3	10 years imprisonment	5%	1 year	11 months and 13 days
11	Aggravated possessing child exploitation material Category 1	7 years Imprisonment	5%	1 year and 4 months	1 year, 3 months and 7 days
12	Possessing child exploitation material Category 2	5 years Imprisonment	5%	1 year	11 months and 13 days

Annexure B: DCCRM-23-032154

Count	Charge	Victim	Maximum Penalty	Reduction Applicable	Sentence	Reduced Sentence
1	Aggravated possessing child exploitation material	7 years Imprisonment	25%	1 year and 8 months	1 year and 3 months
2	Procuring a child under the age of 17 years to engage in or submit to sexual activity	5	10 years Imprisonment	25%	1 year and 6 months	1 year, 1 month and 16 days
17	Procuring a child under the age of 17 years to engage in or submit to sexual activity	6	10 years Imprisonment	25%	1 year and 6 months	1 year, 1 month and 16 days
19	Procuring a child under the age of 17 years to engage in or submit to sexual activity	4	10 years Imprisonment	25%	1 year and 6 months	1 year, 1 month and 16 days
23	Procuring a child under the age of 17 years to engage in or submit to sexual activity	7	10 years Imprisonment	25%	1 year and 6 months	1 year, 1 month and 16 days
25	Procuring a child under the age of 17 years to engage in or submit to sexual activity	2	10 years Imprisonment	25%	1 year and 6 months	1 year, 1 month and 16 days
33	Procuring a child under the age of 17 years to engage in or submit to sexual activity	5	10 years Imprisonment	25%	1 year	9 months