Cunningham v The King - [2024] SASCA 138

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: undefined)
CUNNINGHAM v THE KING
[2024] SASCA 138
Judgment of the Court of Appeal
(The Honourable Justice S Doyle and the Honourable Justice David)
5 December 2024
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 - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
This is an application for permission to appeal against sentence. The applicant pleaded guilty to, and was sentenced for, various child sexual offences committed against four children between February and December 2022. After reductions for his pleas of guilty, and allowances for concurrency and totality, the judge sentenced the applicant to imprisonment for eight years. The judge ordered that this sentence be served cumulatively upon the sentence of imprisonment for two years, three months and one day that the applicant was already serving for an offence of unlawful sexual intercourse, giving a total head sentence of imprisonment for 10 years, three months and one day.
The applicant fell to be sentenced as a ‘serious repeat offender’ under s 53 of the Sentencing Act 2017 (SA). It followed that, under s 54(1)(b), the judge was required to fix a non-parole period of at least four-fifths the length of the head sentence. The sentencing judge had a discretion under s 54(2) to not apply this requirement if satisfied that the applicant’s personal circumstances were ‘so exceptional as to outweigh the paramount consideration of protecting the safety of the community … and personal and general deterrence’ (s 54(2)(a)), and that it was, ‘in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender’ (s 54(2)(b)).
The sentencing judge declined to exercise this discretion. Applying ss 47 and 54(1)(b) of the Sentencing Act, her Honour extended the applicant’s existing non-parole period by six years, four months and 25 days, being four-fifths of the head sentence of eight years imposed for the subject offending, to a non-parole period of seven years, six months and 24 days.
The applicant seeks permission to appeal against sentence on the ground that the judge erred in the exercise of her discretion under ss 54(2)(a) and (b).
Held, per the Court, granting permission to appeal and allowing the appeal:
1.It cannot be said that it was unreasonable or plainly unjust for the sentencing judge to decline to exercise her discretion under s 54(2);
2.However, proceeding on the basis that it was necessary to extend the applicant’s existing non-parole period by four-fifths of the head sentence for the subject offending, rather than merely extended to an overall non-parole period of this length, involved a process error; and
3.It is appropriate for this Court to grant permission to appeal, and allow the appeal, for the limited purpose of setting aside the extended non-parole period fixed by the sentencing judge and substituting an extended non-parole period of seven years.

Criminal Law Consolidation Act 1935 (SA) ss 63(a), 63A(1)(a), 63B(3)(b); Sentencing Act 2017 (SA) ss 47, 52, 53, 54, 54(1), 54(1)(a), 54(1)(b), 54(2), 54(2)(a), 54(2)(b), referred to.
Akwar v The King [2023] SASCA 118; Hutchins v The Queen [2021] SASCA 31; Knight v The Queen (2021) 138 SASR 156; R v Culley (2019) 134 SASR 92; R v Karnage [2019] SASCFC 82; Wallace v The King [2023] SASCA 127; White (a pseudonym) v The Queen (2022) 141 SASR 398, considered.

CUNNINGHAM v THE KING
[2024] SASCA 138
Court of Appeal – Criminal: S Doyle and David JJA

THE COURT: The applicant pleaded guilty to, and was sentenced for, various child sexual offences committed against four children. The offending involved the use of Snapchat. It occurred between February and December 2022, while the applicant was on bail for an offence of unlawful sexual intercourse, and subject to a good behaviour bond for a driving offence.
The applicant was between 20 and 21 years of age at the time of his offending. The sentencing judge accepted that his offending was in part the consequence of his traumatic childhood experiences.
After reductions for his pleas of guilty, and allowances for concurrency and totality, the judge sentenced the applicant to imprisonment for eight years. The judge ordered that this sentence be served cumulatively upon the sentence of imprisonment for two years, three months and one day that the applicant was already serving for his offence of unlawful sexual intercourse, giving a total head sentence of imprisonment for 10 years, three months and one day.
The applicant fell to be sentenced as a ‘serious repeat offender’ under s 53 of the Sentencing Act 2017 (SA). It followed that, under s 54(1)(b), the judge was required to fix a non-parole period of at least four-fifths the length of the head sentence. Under s 54(2), the judge had a discretion not to apply this requirement if satisfied that the applicant’s personal circumstances were ‘so exceptional as to outweigh the paramount consideration of protecting the safety of the community … and personal and general deterrence’ (s 54(2)(a)), and that it was, ‘in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender’ (s 54(2)(b)).
The judge declined to exercise this discretion. In reviewing and extending the applicant’s non-parole period for his unlawful sexual intercourse offending, the judge extended it by six years, four months and 25 days (being four-fifths of the eight years imposed for the subject offending), giving an extended non-parole period of seven years, six months and 24 days.
The applicant seeks permission to appeal on the ground that the judge erred in the exercise of her discretion under ss 54(2)(a) and (b).
The applicant’s offending
The applicant was convicted, on his pleas of guilty, of the following offending:
·one count of aggravated communicating with the intention of making a child amenable to sexual activity (Count 1),[1] with a maximum penalty of imprisonment for 12 years;
·two counts of communicating with the intention of making a child amenable to sexual activity (Counts 5 and 6),[2] with a maximum penalty of imprisonment for 12 years;
·two counts of aggravated producing child exploitation material (Counts 2 and 3),[3] with a maximum penalty of imprisonment for 12 years;
·two counts of producing child exploitation material (Counts 7 and 9),[4] with a maximum penalty of imprisonment for 15 years; and
·one count of knowingly being in possession of child exploitation material (Count 10),[5] with a maximum penalty of imprisonment for 12 years.
[1] In contravention of s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
[2] In contravention of s 63B(3)(b) of the CLCA.
[3] In contravention of s 63(a) of the CLCA.
[4] In contravention of s 63(a) of the CLCA.
[5] In contravention of s 63A(1)(a) of the CLCA.
It is appropriate to describe the applicant’s offending so as to appreciate its serious and sustained nature. The following largely reflects the sentencing judge’s summary.
The applicant made contact with the first victim, A, in February 2022. She was nine years old and lived interstate. He contacted her through the electronic communications application Snapchat, using a group which was intended for children in year 5 at school.
After establishing contact with A, the applicant asked her for a photograph of her face. When she sent one, he told her she was beautiful. Knowing A was under the age of 14, the applicant then asked A to send him photographs of herself naked. A told police she sent these images to the applicant because he had threatened her. As there was no evidence of these threats, the judge did not sentence the applicant on the basis he made threats. However, the judge accepted that A was aware that the applicant had taken screenshots of the images she had sent him, and of her location, and that this would have made her frightened of what he might do, even without any specific threat. The applicant proceeded to send A photos of his face and penis, and videos of him having sexual intercourse with an adult female. He also sent A a picture of her friend M naked. M was only 13 years of age.
The applicant’s conduct in communicating to obtain illicit photographs from nine-year-old A was the subject of Count 1. His conduct in screen recording pornographic video chat messages with A was the subject of Count 3.
The applicant made contact with the second victim, M, at about the same time. She was a friend of A, and a member of the same Snapchat group. She was 12 years of age at the time. On one of the applicant’s devices, police located recorded video chat messages in which the applicant directed M to perform pornographic acts including touching her own vagina and penetrating herself with her fingers and objects. It was apparent from those recordings that M was distressed by what she was being asked to do. This conduct was the subject of Count 2.
The applicant contacted his third victim, K, over Snapchat in November 2022. She was 13 years of age at the time. The applicant told her he was 21 years of age. He was kind to her and told her he would be like an older brother to her, and look after her. He offered to take her to the movies and to get her nails done. He began to ask her for naked photographs. He offered to buy her dinner and jewellery if she sent them to him. He reassured her that he would not do anything with the images she sent him, saying that he would get locked up if he did. She was reluctant, but he was persistent. K ultimately sent him images of her breasts and between her legs. She received notifications that he had saved the images she sent. The applicant sent her pictures of his penis. K expressed reluctance to send him any more pictures but he threatened to send her images to ‘everyone’ if she did not do so. Images of K naked were then posted in a Snapchat group and disseminated amongst students from her school. Whilst it was not proved that the applicant was responsible for this dissemination, the judge observed that the applicant’s conduct in creating a record of naked images of K made her vulnerable to this dissemination, and it was an aspect of the effect of the applicant’s conduct upon K.
As a result of this dissemination, police were notified, and the applicant was arrested on 18 December 2022. Upon examination of the applicant’s mobile phone it was discovered that he had made a screen recording of a pornographic video of K. Although K was less than 14 years of age, the prosecution accepted that it was not proven that the applicant knew this to be so. The applicant’s communications with K were the subject of Count 5, and the screen recording the subject of Count 9.
The fourth victim, J, was 16 years of age and lived interstate. As an intellectually disabled child, she was especially vulnerable to sexual exploitation. Over the course of three days in November 2022, the applicant communicated with her over Snapchat. He engaged her in sexualised conversations, and made video screen recordings of those conversations. This conduct was the subject of Counts 6 and 7.
The applicant also pleaded guilty to one count of knowingly being in possession of child exploitation material. This charge related to a range of material in the applicant’s possession at the time of his arrest on 18 December 2022. It comprised images of the four victims mentioned above (including 30 videos of A, four videos of M, 11 images and five videos of K, and four videos of J), as well as other unidentified children. This conduct was the subject of Count 10.
The judge received a victim impact statement from A and her mother which described the significant and ongoing impact of the applicant’s offending upon her. Although the judge did not receive victim impact statements from the other victims, her Honour was provided with information to the effect that K had had to move schools as a result of the dissemination of the images of her, and continues to be affected by the offending. Her Honour did not have any information about the effect of the offending on the other victims.
In placing the applicant’s offending in context, the sentencing judge explained that, in December 2020, the applicant had committed an offence of unlawful sexual intercourse with a child under 14 years of age. He had initially communicated with the victim of that offending over Snapchat, but then met her in person. During that meeting, she performed an act of fellatio upon the applicant at his ‘very firm insistence’. The applicant was arrested for that offence and granted bail on 29 December 2020.
The following year, on 22 May 2021, while subject to bail conditions, the applicant committed the offence of driving while disqualified from holding or obtaining a driver’s licence. On 20 January 2022, a magistrate imposed a bond to be of good behaviour for 18 months for that offending.
Thereafter, the applicant was subject to both bail conditions and the promise to be of good behaviour. In February 2022, and so just a couple of weeks after the bond was imposed, the applicant committed the offences charged as Counts 1, 2 and 3 against A and M.
On 31 March 2022, the applicant was arrested and remanded in custody for other allegations of offending until 8 June 2022. Whilst those charges were not proceeded with, and so irrelevant for sentencing purposes, the judge observed that this time in custody ought to have been a circuit breaker for the applicant. However, it did not break the pattern of his offending that had begun in February 2022.
Having been released on home detention bail conditions on 8 June 2022, the applicant committed the offences charged as Counts 5, 6, 7 and 9 against K and J. These offences were thus committed in breach of the applicant’s home detention bail and the bond to be of good behaviour.
The applicant was arrested for the subject offending on 18 December 2022, and has remained in custody since that date.
On 22 March 2023, the applicant was sentenced for the offence of unlawful sexual intercourse that he had committed in December 2020. The sentencing judge in that matter imposed a sentence of imprisonment for two years, three months and one day, after reductions for the applicant’s guilty plea and time served in custody and on home detention. He fixed a non-parole period of one year, one month and 16 days.
The applicant’s personal circumstances
As mentioned, the applicant was between 20 and 21 years of age at the time of his offending. He is an Aboriginal man, but without the benefit of any cultural education or connection with the elders in his community.
The sentencing judge addressed at some length the applicant’s personal circumstances, as gleaned from two reports provided by Dr Lim, a forensic psychologist.
The applicant was born in Victoria, the second of five children. Each of his parents also had children from other relationships. When the applicant was four or five, his parents separated and re-partnered with a man and woman who were half-siblings to one another. His father was emotionally abusive and regularly expressed doubts about the applicant’s paternity.
In 2008, the applicant was brought to Adelaide by his mother and her partner in order to escape the attention of the child protection authorities in Victoria. The applicant’s father and his partner were already in South Australia and the two couples moved in together, sharing a house in Parafield Gardens. The activities of the adults in that house were subsequently the subject of a high-profile prosecution, with six adults charged with, and ultimately convicted of, serious criminal offences including endangering life and acts creating a risk of serious harm.
The applicant, while seven and eight years of age, was a victim of this child neglect and abuse. When rescued from the house at Parafield Gardens, the applicant was malnourished, emaciated, covered in bruises and suffering from an untreated skin infection. He was hospitalised for almost a month. Over time, the children, including the applicant, were nursed back to physical health but with continuing psychological scars.
The applicant was placed under the guardianship of the Minister. He was initially placed in a care facility, but after about three and a half years, he and his siblings were separated and placed into foster care. He initially struggled in his education, but in high school began to do well both academically and in his sporting activities. However, in 2017, while in Year 10, the applicant began to struggle again. Following some incidents of violence against other students, he was suspended and then expelled. In 2019 or 2020, the applicant stopped living in foster care and moved into independent accommodation with the Housing Trust. He was drinking alcohol and taking drugs.
The applicant eventually managed to finish Year 11 and enrolled in a certificate in engineering at Thebarton Senior College. He then obtained a place in an apprenticeship program. The applicant worked in that program until 2022, when he was suspended for threatening to punch a fellow apprentice who was harassing him. He was not able to return to that work.
As a result of his suspension, the applicant found himself at home for longer hours. He became depressed and began to use social media in an unhealthy way.
According to Dr Lim, the applicant has a complex psychosexual history. While living with his parents, he was exposed to inappropriate sexual behaviour, and subjected to serious sexual abuse by one of the adult children living with them. As a teenager, the applicant had sexual relationships with women his age. He told Dr Lim that during the period of his offending he was not targeting children in particular, but women more broadly, without really knowing their ages. However, by his pleas of guilty, the applicant admitted that he knew his victims were children, and that A and M were under the age of 14. As the sentencing judge emphasised, the fact is that he did communicate with children, including children he knew were under 14 years of age, and preyed on their vulnerabilities to satisfy his own sexual depravities. He did so with four different children, over a period of about 12 months.
When asked why he kept offending even after being charged with some offences and on home detention bail, the applicant told Dr Lim that he was bored and social media was available; and that he was naïve and did not appreciate the seriousness of his offending. The sentencing judge rejected the applicant’s suggestion that he did not appreciate the seriousness of his offending, referring to the applicant telling K that he would not share her images because if he did he would go to jail.
In Dr Lim’s opinion, while the applicant did not satisfy the criteria for a paedophilic disorder, he had developed paedophilic proclivities. This had combined with a sex addiction and egocentricity. She also expressed the opinion that the applicant’s deviant sexual behaviour and attitudes are likely to have stemmed from his traumatic childhood experiences; and that the abuse he had suffered as a child had led to the development of warped and dysfunctional attitudes about sex.

Dr Lim’s initial assessment was that the applicant’s risk of future offending was high. However, she noted that he had commenced participation in the Sexual Behaviour Clinic (SBC) program, and was demonstrating an appropriate level of engagement. She observed that the applicant had developed greater insight into his offending, and into the harm done to his victims. He had matured, with his self-awareness improving, and his egocentricity reducing. He appeared interested and committed to his rehabilitation through the SBC program. This had led to her reassessing the applicant’s risk of future offending as moderate or average. In Dr Lim’s view, it was important to the applicant’s rehabilitation that he not only continue with the SBC program, but also engage in therapy to address his childhood abuse.
The applicant did not have any criminal history other than the unlawful sexual intercourse and driving offences mentioned earlier.
The sentence imposed
The sentencing judge identified separate sentences for each of the offences, and reduced each by the maximum available percentage to reflect the applicant’s pleas of guilty. Her Honour grouped the offences according to the victim, with the sentences for offences against the same victim to be served concurrently. In relation to the breach of bond for driving while disqualified, the judge recorded a conviction but with no further penalty.
Given the nature of this appeal, it is not necessary to set out the detail of the sentence. It is sufficient to note that this resulted in an overall sentence of imprisonment for nine years, six months and six days. However, having regard to the applicant’s young age, and the need to ensure that the sentence ultimately imposed was proportionate to the applicant’s offending and circumstances, the judge made a reduction for totality, resulting in a head sentence of imprisonment for eight years.
Turning to the non-parole period, the judge noted that the applicant’s offending included a number of offences which were ‘serious sexual offences’ within the meaning of s 52 of the Sentencing Act, and that he fell to be sentenced as a ‘serious repeat offender’ under s 53 of that Act. It followed, under s 54(1), that: (a) the Court was not bound to ensure that the sentence imposed was proportional to the offences committed; and (b) any non-parole period must be at least four-fifths the length of the head sentence. However, under s 54(2), these requirements did not apply if the two requirements in subsections (a) and (b) were made out:
(2)     However, a court that is sentencing a person who is a serious repeat offender for an        offence may declare that subsection (1) does not apply if the person satisfies the     court, by evidence given on oath, that—
(a)     the person's personal circumstances are so exceptional as to outweigh the            paramount consideration of protecting the safety of the community (whether              as individuals or in general) and personal and general deterrence; and
(b)     it is, in all the circumstances, not appropriate that the person be sentenced as        a serious repeat offender.
The judge noted the submission of counsel for the applicant to the effect that the applicant’s extraordinary personal background was properly characterised as so exceptional as to meet the test in s 54(2)(a), and that it was not appropriate that he be sentenced as a serious repeat offender (s 54(2)(b)).
In concluding that the two requirements of s 54(2) had not been made out, the judge reasoned as follows:
People who come before these criminal courts often have very tragic personal histories. It is the consistent experience of judges working in criminal courts that mistreatment, neglect and trauma is a common theme of the childhood of many people who go on to offend as adults.
It is not a question of balancing the scales by imposing a lesser punishment on those who have suffered in the past but a matter of understanding that childhood trauma fundamentally affects psychological development. It is obvious from your personal history that you have developed a resilience and determination that for a period of time enabled you to overcome your early trauma, get an education and enter the beginning stages of a promising long-term career.
There is no doubt, however, that aspects of your childhood trauma and dysfunctional psychosexual development has played a part in your conduct. I am impressed with your engagement in the sexual behaviour clinic and your early insight into the matters that you will need to address to reduce your risk.
In a case of Knight v The Queen the Court of Appeal considered how the term exceptional circumstances in s 54 is to be approached. The language used means that the exceptional circumstances must be of a nature that means the protection of the public and personal and general deterrence is outweighed. There must be a link between the exceptional circumstances and the displacement of the statutory presumptions of the paramount considerations in s 54.
Your background and your personal circumstances are tragic and they elicit a great deal of sympathy. They may be described objectively as exceptional. I have tried to give those circumstances weight in the sentences that I have imposed. I have not, however, reached the conclusion that your circumstances are so exceptional as to displace the statutory presumption of the primacy of the general community and personal and general deterrence.
In your case the persistence of your offending during periods of time when you were subject to various court orders does suggest that personal deterrence is a significant factor for you. In offences of this kind there is a real need to emphasise general deterrence. Offences that target children over the internet for sexual exploitation are especially pernicious.
I am not satisfied of the two matters set out in s 54(2) and I decline to declare that the consequences of the serious repeat offender provisions do not apply.
The sentencing judge did not consider it necessary or appropriate to impose a disproportionate sentence (s 54(1)(a)). However, her Honour was required to apply s 54(1)(b) in fixing the non-parole period.
The applicant was already serving a sentence of imprisonment for two years, three months and one day, with a non-parole period of one year and two months. The judge ordered that the sentence for the subject offending be served cumulatively upon this sentence, resulting in a combined head sentence of 10 years, three months and one day.
Under s 47 of the Sentencing Act, the judge was required to review and extend the existing non-parole period. Her Honour said that she must extend it by a period that reflected the statutory obligations associated with the applicant being a serious repeat offender. She therefore extended it by six years, four months and 25 days, which was four-fifths of the eight years imprisonment she had imposed.
That resulted in an overall sentence of imprisonment for 10 years, three months and one day, with a non-parole period of seven years, six months and 24 days. The sentence was backdated to 18 December 2022, being the date the applicant was taken into custody. The judge made intervention orders in the terms sought, and an order that the applicant forfeit his mobile phone.
The proposed appeal
The applicant does not take issue with his total head sentence, nor any of its component parts. His single proposed ground of appeal involves a complaint that the sentencing judge erred in the exercise of her discretion under s 54(2) of the Sentencing Act.
In particular, the applicant contends that the judge erred in:
·concluding that the applicant’s circumstances were not so exceptional as to outweigh the paramount consideration of protecting the safety of the community, and personal and general deterrence;
·subsuming the applicant’s exceptional circumstances within a general category of mistreatment, neglect and trauma;
·failing to properly or adequately consider the link between the applicant’s exceptional circumstances and the displacement of the paramount considerations under s 54; and
·failing to properly or adequately consider the potential benefit to the safety of the community of a non-parole period of less than four-fifths of the head sentence.
The sentencing judge’s reasons for declining to exercise her discretion under s 54(2) have been set out above. In short, the judge accepted that, whilst mistreatment, neglect and trauma were a common theme in the background of many defendants, the applicant’s traumatic personal history was exceptional. Further, his childhood trauma and dysfunctional psychosexual development had played a part in his offending. However, despite some circumstances suggesting room for optimism as to his prospects for rehabilitation, his circumstances were not ‘so exceptional’ as to outweigh the paramount concern for community safety, and personal and general deterrence. The duration and persistence of his offending, and in particular the fact that it occurred whilst he was subject to both bail and a good behaviour bond, and continued even after he had been arrested for other charges, suggested that personal deterrence was a significant consideration; and child sexual offences, and in particular those involving the use of the internet, required an emphasis upon general deterrence. For those reasons, the judge was not prepared to exercise her discretion not to sentence the applicant as a serious repeat offender.
In his written submissions, the applicant emphasised that the effect of exercising the discretion under s 54(2) is not to permit a defendant to escape an application of the usual sentencing principles, let alone to afford that person special leniency; rather, an exercise of the discretion merely permits the amelioration of ‘a special amplification of sentencing impact’. Whilst this is an accurate enough observation, there is no basis for thinking that the sentencing judge did not appreciate the essential nature or effect of the discretion she was invited to exercise.
Further, we do not think it is fair to characterise her Honour’s approach as suggesting that the relevance of the usual sentencing principles to the case at hand was a sufficient basis for declining to exercise the s 54(2) discretion. Rather, her Honour’s references to the importance of personal and general deterrence in the circumstances of the present case were an appropriate aspect of her reasons for not being satisfied that the applicant’s personal circumstances were ‘so exceptional’ as to outweigh the paramountcy of the identified sentencing considerations in a way that made it inappropriate to sentence the applicant as a serious repeat offender.
Nor is there any other basis for suggesting error in the judge’s approach. Whilst the judge referred to a background of mistreatment, neglect and trauma being a common theme for defendants, we do not think her Honour can be said to have overlooked the particularly serious mistreatment, neglect and trauma that the applicant had experienced; or its connection to the applicant’s offending. To the contrary, the sentencing judge addressed these matters at length in the body of her sentencing remarks, and in the operative passage of her reasons made further reference to them and, indeed, accepted that the applicant’s circumstances were exceptional. Nor did her Honour overlook the circumstances suggesting some room for optimism in relation to the applicant’s prospects for rehabilitation. Again, her Honour had addressed these considerations at length earlier in her sentencing remarks, and then made reference to them in the operative section of her remarks.
The judge’s reason for declining to exercise her discretion in favour of the applicant was not that she overlooked, or failed to properly appreciate, these factors in the applicant’s favour, or even their exceptional nature. Rather, her Honour’s reason for declining to exercise her discretion was that she was not ultimately satisfied that they supported a conclusion that the applicant’s exceptional personal circumstances were ‘so exceptional’ as to outweigh the paramountcy of community safety and deterrence (both personal and general), and make it inappropriate to sentence the applicant as a serious repeat offender. Approaching the issue in this way was consistent with the approach indicated by the authorities,[6] and required by the use of the adverb ‘so’ in s 54(2).
[6] R v Karnage [2019] SASCFC 82 at [70], [72] (Nicholson J, Kelly and Hinton JJ agreeing); Knight v The Queen (2021) 138 SASR 156 at [62] (Livesey J, Kelly and Bleby JJ agreeing); White (a pseudonym) v The Queen (2022) 141 SASR 398 at [89]-[92] (Lovell, Bleby and David JJA); Wallace v The King [2023] SASCA 127 at [25]-[26] (Livesey P and David JA).
In concluding that the applicant’s personal circumstances did not outweigh the paramountcy of community safety and deterrence, her Honour relied upon the particular importance in the present case of both personal deterrence (given that the applicant’s offending was persistent, and continued while he was subject to a bond and bail conditions), and general deterrence (given the nature of the offending). These were appropriate considerations in the exercise of the judge’s discretion under s 54(2) of the Sentencing Act.
It may be acknowledged that another sentencing judge might reasonably have taken a different view of the balance to be struck. Another judge might reasonably have taken the view that the link between the applicant’s traumatic childhood experiences and his offending, together with his young age and tentative steps towards rehabilitation, justified departure from the sentencing regime Parliament has put in place for serious repeat offenders. He or she might have focussed upon the potential for the applicant, and ultimately the community, to benefit from the imposition of a sentence that allowed for a shorter non-parole period, and hence a longer period of supervised parole. However, there were also considerations which supported sentencing the applicant as a serious repeat offender. For the reasons mentioned, his offending called for a significant measure of both personal and general deterrence.
All things considered, it cannot be said that it was unreasonable, or plainly unjust, for the judge to decline to exercise her discretion under s 54(2) of the Sentencing Act. Bearing in mind the discretionary nature of the judge’s decision, the applicant’s proposed ground of appeal is not reasonably arguable.
A further matter
Having rejected the challenge to the sentencing judge’s decision to impose a non-parole period of at least four-fifths the length of the applicant’s head sentence under s 54(1)(b) of the Sentencing Act, it was appropriate that the sentencing judge, in fixing a non-parole period, extend the applicant’s existing non-parole period (one year and two months) pursuant to s 47 of that Act. It appears from her Honour’s sentencing remarks that, in so doing, she proceeded on the basis that she was required to extend the existing non-parole period by at least four-fifths of the applicant’s head sentence (that is, by at least six years, four months and 25 days, being four-fifths of the head sentence of eight years imposed for the subject offending). Her Honour thus fixed an extended non-parole period of seven years, six months and 24 days.
However, having regard to the Court’s reasons in R v Culley,[7] it was only necessary that the non-parole period, once extended, be at least four-fifths the length of the head sentence for the subject offending. In other words, the operation of ss 47 and 54(1)(b) did not require that the existing non-parole period be extended by at least six years, four months and 25 days; it required only that the extended non-parole period be at least six years, four months and 25 days.
[7] R v Culley (2019) 134 SASR 92 at [58] (Kourakis CJ, Peek and Hughes JJ).
Having identified this potential error in the sentencing judge’s approach, the Court invited further submissions from the parties. The applicant seeks to rely upon this error in the sentencing judge’s approach, and invites the Court to fix a lower extended non-parole period. The respondent opposes this course. Whilst accepting the correctness of the above analysis of the operation of ss 47 and 54(1)(b) of the Sentencing Act in light of R v Culley, the respondent points out that the sentencing judge was nevertheless entitled to fix an extended non-parole period in excess of four-fifths of the length of the head sentence for the subject offending.[8]
[8] Relying upon Hutchins v The Queen [2021] SASCA 31 at [9]-[11] (Kelly P, Lovell and Livesey JJ); and Akwar v The King [2023] SASCA 118 at [81]-[84] (David JA, Stanley and Stein AJJA).
It may be accepted that the sentencing judge was entitled to fix an extended non-parole period in excess of six years, four months and 25 days (being four-fifths of the eight years imposed for the subject offending). However, it is not clear that the sentencing judge appreciated that she was fixing a non-parole period in excess of what was required by s 54(1)(b). To the contrary, her Honour’s remarks suggest that she considered she was fixing the minimum period required by that subsection. In the circumstances, a process error has been identified, and it is appropriate that this Court grant permission to appeal, and allow the appeal, for the limited purpose of re-exercising the sentencing court’s discretion in fixing the length of the applicant’s extended non-parole period.
As explained, ss 47 and 54(1)(b) of the Sentencing Act require that the extended non-parole period be at least four-fifths of the eight year head sentence imposed for the subject offending, and hence at least six years, four months and 25 days. However, in addition to imposing this numerical minimum for the extended non-parole period, s 54(1)(b) also reflects a legislative policy as to the appropriate proportionate length of non-parole periods for serious repeat offenders. Whilst that policy does not require that the existing non-parole period be extended by as much as four-fifths of the head sentence for the subject offending, it may nevertheless support fixing an extended period which exceeds the numerical minimum prescribed by s 54(1)(b).
In fixing an extended non-parole period for the applicant, it is appropriate to have regard to the persistent and sustained nature of the applicant’s offending, and the fact that various of his offences were committed in breach of the conditions of his bail and bond. On the other hand, the applicant’s personal circumstances not only evoke sympathy but also leave some room for optimism in relation to his prospects for rehabilitation. In all the circumstances, we would fix an extended non-parole period of seven years.
Orders
For the reasons set out, we grant permission to appeal, and allow the appeal for the limited purpose of setting aside the extended non-parole period fixed by the sentencing judge, and substituting an extended non-parole period of seven years.