Glade v The Queen - [2020] SASCFC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
GLADE v THE QUEEN
[2020] SASCFC 83
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Livesey and The Honourable Justice Bleby)
8 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
The appellant pleaded guilty to one count of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and one count of possession of child exploitation material contrary to s 63A(1)(a) of the Act.
The appellant and victim met on social media. At the time of the offending the appellant was 26 years old and the victim aged 15. The victim had sent the appellant three pornographic photographs of herself which were later recovered on the appellant’s mobile phone. On 10 September 2018 the appellant and victim met in person, and whilst in the backseat of the appellant’s vehicle, he performed cunnilingus on the victim. The appellant and the victim were discovered by the victim’s parents. The police were called and the appellant was arrested.
During his police interview the appellant said that he believed that the victim was aged at least 19 years. He said he believed this because this was the age stated on her social media profile and also because the photographs she had sent him confirmed, at least in his mind, that she was at least 19 years old.
Before the sentencing Judge both counsel agreed that a sentence of imprisonment was appropriate. Further, by operation of the Sentencing Act 2017 (SA) the sentencing Judge was precluded from imposing a suspended sentence or ordering that the sentence be served on home detention. After allowing for time spent on home detention bail and for his early pleas of guilty, the sentencing Judge imposed a single sentence of 12 months’ imprisonment for both counts.
At the time of his offending the appellant was on parole. The sentencing Judge ordered that the sentence that she imposed be served cumulatively upon the unexpired balance of the earlier sentence (one year, three months and nine days) resulting in a head sentence of 27 months and nine days. A non-parole period of 12 months was fixed.
The appellant appeals his sentence of imprisonment on the following grounds:
1. The sentencing Judge failed to consider s 10(2) of the Sentencing Act 2017 (SA), alternatively, the sentencing Judge failed to properly apply s 10(2)(a) or s 10(2)(b) of the Sentencing Act 2017 (SA).
2. The sentence imposed was manifestly excessive as the sentencing Judge erred in not imposing either a bond to be of good behaviour or a shorter sentence of imprisonment.
Held, per Livesey J (Kelly and Bleby JJ agreeing) dismissing the appeal:
1. The sentencing Judge did not err in her approach to s 10 of the Sentencing Act 2017 (SA).
2. Neither the head sentence imposed, nor the non-parole period fixed, was manifestly excessive.
3. Consideration given to the matters relevant to sentencing for unlawful sexual intercourse and the possession of child exploitation material.
4. The relevance of a belief that a child is older and has legal capacity to consent to sexual intercourse, where the child sends explicit photographs and encourages sexual activity, considered.
Correctional Services Act 1928 (SA) s 75 ; Criminal Law Consolidation Act 1935 (SA) s 49(3), s 63A(1)(a); Sentencing Act 2017 (SA) s 10(2), s 10(2)(a), s 10(2)(b), s 26, s 71(2)(b)(ii), s 96(3)(ba), s 97; Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA), referred to.
Barbaro v The Queen (2014) 253 CLR 58; Dinsdale v The Queen (2000) 202 CLR 321; Evans v The Queen [2019] SASCFC 145; He Kaw Teh v The Queen (1985) 157 CLR 523; McManus v Police [2019] SASC 206; R v Clarke (No 2) (2008) 186 A Crim R 40; R v Halse (1997) 70 SASR 456; R v Knipe [2017] SASCFC 34; R v McNamara (2009) 105 SASR 38; R v Nemer (2003) 87 SASR 168; R v Padberg (2010) 107 SASR 386; R v Petrovski [2005] SASC 330; R v Smith (2007) 97 SASR 302, considered.

GLADE v THE QUEEN
[2020] SASCFC 83
Court of Criminal Appeal: Kelly, Livesey and Bleby JJ

KELLY J: I agree with Livesey J.
LIVESEY J:
Introduction
This is an appeal against sentence.
On 15 May 2020 the appellant was sentenced following pleas of guilty to:
1One count of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty for which is imprisonment for 10 years; and
2One count of possession of child exploitation material contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty for which is imprisonment for five years.
The sentencing Judge imposed a single sentence of imprisonment of 16 months for both offences pursuant to s 26 of the Sentencing Act 2017 (SA). This reflected a 20 per cent discount from a starting position of 20 months for the pleas of guilty. The sentencing Judge made a further discount of four months to allow for time spent on home detention bail, resulting in a sentence of 12 months’ imprisonment.
At the time of his offending on 10 September 2018 the appellant was on parole for a sentence of imprisonment of three years and six months, with a non-parole period of 18 months, following pleas of guilty to one count of aggravated drive dangerously to cause police pursuit, one count of possessing a firearm without a licence and five counts of possessing a prohibited weapon.
The sentencing Judge was required to address the unexpired balance of that earlier sentence of one year, three months and nine days.
The sentencing Judge ordered that the sentence that she imposed be served cumulatively upon the unexpired balance of the earlier sentence, resulting in a head sentence of 27 months and nine days. She fixed a non-parole period of 12 months. Both the head sentence and the non-parole period were ordered to commence from the date of sentencing, being 15 May 2020.
The grounds of appeal
The appellant appeals on the following grounds:
1The sentencing Judge failed to consider s 10(2) of the Sentencing Act 2017 (SA).
1aIn the alternative to ground 1, the sentencing Judge failed to apply properly s 10(2)(a) or s 10(2)(b) of the Sentencing Act 2017 (SA) in that the offending was not serious as to require the decision that imprisonment was the only penalty that could have been justified or the circumstances did not allow the sentencing Judge to conclude that imprisonment was required for the protection of the safety of the community.
2The sentencing Judge erred in finding that the appellant and the victim were in a relationship.
3The sentencing Judge erred in imposing a sentence which was manifestly excessive.
Permission to appeal was granted in relation to grounds 1a and 3, and grounds 1 and 2 were referred to the Court of Criminal Appeal. Ground 2 has been abandoned.
Disposition of the appeal
The appeal should be dismissed.
The sentencing Judge made no specific error, and certainly did not err in her approach, in relation to s 10 of the Sentencing Act 2017 (SA).
Neither the head sentence imposed, nor the non-parole period fixed, was manifestly excessive.
The circumstances of the offending
In July 2018 the appellant was aged 26 and the victim 15 years of age. They first made contact using a social media application known as “Hot or Not”.
In September 2018 they conducted online conversations for around a week. The victim sent the appellant three pornographic photographs of herself. They were classified as category 1 which is the least serious type of child pornography. These were later recovered from the appellant’s mobile phone and comprised count 2 (possession of child exploitation material).
On 10 September 2018 the victim and the appellant agreed to meet. The appellant travelled to the victim’s home in a country town at around 1:35 am, collected the victim and took her to a nearby paddock. They moved to the backseat of the appellant’s motor vehicle. There was sexual activity which included the appellant rubbing the victim’s breasts, kissing her lips and touching her vagina. Whilst the victim was lying on the backseat, the appellant performed cunnilingus. This comprised count 1 (unlawful sexual intercourse).
Having discovered that the victim was not at home, her parents drove to the paddock. There was a violent physical altercation between the victim’s father and the appellant. The appellant was injured. Police were called. The appellant was arrested. The victim ran off and was not located until the following morning.
During his police interview, the appellant said that he believed that the victim was aged 19 years. He said that he believed that she was 19 years old because this was the age stated on her “Hot or Not” profile. In addition, the photographs that the victim sent to him and her appearance when they met in person confirmed in his mind, he said, that she was indeed at least 19 years old.
The prosecution did not accept that the appellant believed the victim to be 19 years old. However, the prosecution did not call the victim to give evidence. At a disputed facts hearing before the sentencing Judge, only the appellant gave evidence. After hearing his evidence the sentencing Judge found, on the balance of probabilities,[1] that the appellant believed the victim to be at least 19 years of age. As she correctly pointed out, that finding “significantly reduces [the appellant’s] moral culpability”.
[1] R v Olbrich (1999) 199 CLR 270, [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
The appellant fell to be sentenced against his prior offending on 19 July 2016 which was the product of what might be described as a methylamphetamine “binge”. The earlier sentencing Judge accepted that the death of the appellant’s older brother, who had died only seven days before the offending, had occasioned considerable grief and, whilst he had been using methylamphetamine for the previous year or so, he used much more closer to the offending. The earlier sentencing Judge sentenced the appellant on the basis that he had no prior convictions and, following a reduction for early pleas of guilty, he was sentenced to three years and six months’ imprisonment, with a non-parole period fixed at 18 months, both of which were backdated to commence on 19 July 2016 when the appellant was taken into custody.
As mentioned, the subject offending was committed whilst the appellant remained on parole for this earlier offending.
Circumstances of the offender
At the time of sentencing the appellant was 27 years, living with his 66-year-old paternal uncle who required care because of long-standing schizophrenia and other health issues.
The appellant had experienced a difficult childhood. His mother died when he was only 11 months old. He was raised primarily by his father who was, at the time of sentencing, living in Victoria caring for his mother. Whilst at school the appellant was diagnosed with dyslexia. He left school at 15 years, after which he had generally been gainfully employed as a baker.
A psychological report from Mr Broomhall dated 28 April 2020 described an earlier reliance on illicit drugs from which, by the time of sentencing, the appellant had largely rehabilitated himself. This was confirmed by 15 negative drug tests between December 2018 and January 2020.
Mr Broomhall did not regard the appellant as suffering from any psychological or psychiatric condition. There was no evidence of any sexual paedophilic disorder or of paedophilic or hebephiliac interests. There were, indeed, no significant static or dynamic risk factors suggesting sexual recidivism. He considered the appellant to be at very low risk of sexual reoffending.
The appellant had had a number of “age appropriate” relationships. One of these relationships had come to an end only shortly before the victim and the appellant first made contact. The sentencing Judge accepted that the decision to meet up with the victim was “to some extent a spontaneous one”.
The sentence imposed and the nature of the offence
As mentioned, the sentencing Judge imposed a sentence of imprisonment of 12 months which reflected discounts for pleas of guilty as well as for time served on home detention bail.
When fixing a non-parole period of 12 months, the sentencing Judge explained that she had considered:
… your relatively young age, the rehabilitative efforts you have made since your arrest for this offence, your excellent compliance with home detention conditions, your good employment history and the references that I have received all of which suggest that you are at low risk of re-offending despite your antecedent history. I also have regard to the opinion of Mr Broomhall that your risk of future sexualised offending behaviour was in the very low range.
It was not suggested on this appeal that there is any sentencing standard applicable to the appellant’s offending. This is not a case to which the sentencing standard in R v D applied.[2]
[2] R v D (1997) 69 SASR 413.
The purposes underlying the offence of unlawful sexual intercourse include protecting young people from predatory conduct by older people,[3] and the adverse physiological and psychological consequences which can often follow.[4]
[3] R v Petrovski [2005] SASC 330, [6] (Doyle CJ).
[4] R v Smith (2007) 97 SASR 302, [31] (Gray J, with whom Doyle CJ agreed, Vanstone J contra), a successful Crown appeal against a suspended sentence where the respondent maintained unlawful sexual relationships with two young girls who were about half his age, one of whom became pregnant. The term of imprisonment was increased to five years and 10 months with a non-parole period of two years and six months. The Court declined to suspend the sentence.
In an age when the use of social media applications is becoming ever more prevalent, the need to protect the young from the consequences of their own conduct (which, as here, included deliberate deception by the younger person about her age) suggests that greater weight must increasingly be accorded to general deterrence. That can raise difficulties where, as here, the appellant was found to have held a genuine belief that the victim was older, and legally competent to consent to sexual activity.[5] As was explained in R v Clarke, in the context of sentencing for charges of inciting a child to commit an indecent act and of child pornography, the community must be vigilant to ensure that children are not involved:[6]
It was common ground that the appellant’s honest and reasonable belief about the ages of the two victims did reduce the culpability of her offending. Her position was quite different from that of Ms Malyschko and Mr Osis, both of whom did know the actual ages of the victims. The fact that the appellant had not known that she was committing an offence, and had not intended to commit an offence, was a very material consideration in sentencing. It is probably not necessary to cite authority for that proposition, but the observations of Brennan J in He Kaw Teh v The Queen;[7] of Street CJ in R v Karaiskakis;[8] of Mitchell J in Harrow London Borough Council v Shah;[9] and of Clarke and Handley JJA in Hickling v Laneyrie[10] bear it out.
…
However, the reduced culpability of an offender who holds an honest and reasonable belief about facts which, if true, would mean that no offence has been committed does not mean that there is no scope for considerations of deterrence in the fixation of a sentence. It will often be the case that persons who have acted honestly and reasonably could have done more to avoid committing the offence in question. In these circumstances, the deterrent effect of a sentence will operate as an inducement to the particular defendant, and to the community generally, to take those extra steps.
… The sentences imposed upon defendants who participate in the production of child pornography, even when doing so under an honest and reasonable mistake, should operate to warn all members of the community of the need for vigilance in this area. Those minded to engage in the production of pornography, especially involving young people, must appreciate the need to ensure that they do not involve children.
(Emphasis in original.)
[5] In South Australia it is an offence to have sexual intercourse with any person under the age of 14 years, or with a person under the age of 17 years. In the latter case it is a defence if the person is 16 years or older and the accused was under the age of 17 or the accused believed on reasonable grounds the person was 17 years or older, s 49 of the Criminal Law Consolidation Act 1935 (SA).
[6]    R v Clarke (No 2) (2008) 186 A Crim R 40, [28], [30]-[31] (White J), a case where it was earlier held the offence was one of absolute liability under Proudman v Dayman (1941) 67 CLR 536 and the appellant’s belief was not a defence. The case concerned a female aged 21 and two victims aged 14 and one count of producing child pornography contrary to s 63(a) of the Criminal Law Consolidation Act 1935 (SA), and one count of inciting a child to commit an indecent act contrary to s 63B(1)(a) of the Criminal Law Consolidation Act 1935 (SA). On resentence, the appellant was convicted on both counts and released on a bond to be of good behaviour for two years. White J also held that though the original sentence had the effect that the appellant was a “registrable offender”, and therefore the appellant’s name had to be entered on the Register of Child Sex Offenders, they were not matters to which the judge could have regard in determining sentence.
[7]    He Kaw Teh v The Queen (1985) 157 CLR 523, 567-568, 583.
[8]    R v Karaiskakis (1956) 74 WN (NSW) 457, 458.
[9]    Harrow London Borough Council v Shah [2000] 1 WLR 83, 90.
[10] Hickling v Laneyrie (1991) 21 NSWLR 730, 742.
Accordingly, because an associated purpose underlying the offence of unlawful sexual intercourse is to protect young people against the consequences of their own immaturity, and not merely to deter older people from taking advantage of, or exploiting, the sexual inclinations of the young,[11] general deterrence remains important even when there is a genuine belief that the victim is older.[12] This is an issue concerned with the protection of the community.[13]
[11] Particularly, older men in relation to younger girls, see R v Williams (1990) 53 SASR 253, 254 (King CJ, with whom Millhouse and Olsson JJ agreed), one count of unlawful sexual intercourse involving a girl of 13 years, imprisonment for three years reduced to 18 months and an existing non-parole period was extended by nine months; R v Ahlburg [1994] SASC 4628, [17] (King CJ, with whom Prior and Perry JJ agreed), two counts of unlawful sexual intercourse by a 20-year-old man involving girls of 15 and 16, imprisonment for three years and a non-parole period of one year; R v Petrovski [2005] SASC 330, [9] (Doyle CJ), [28] (Bleby J) 19-year-old man pleaded guilty to two counts of unlawful sexual intercourse involving a girl aged 13 years old, a term of 15 months’ imprisonment was imposed which was suspended; and Evans v The Queen [2019] SASCFC 145, [59] (Kelly and Parker JJ, with whom Stanley J agreed) involving a man aged 26, his female partner aged 25 and a girl aged 15 on one occasion, imprisonment for two years, five months and 13 days with a non-parole period of 16 months.
[12] R v Halse (1997) 70 SASR 456, 458 (Duggan J, with whom Matheson and Nyland JJ agreed), unlawful sexual intercourse between the appellant man aged 37 and a girl aged 15, whilst the appellant was on parole, accepted that he believed that she was over the age of 16 years and that the legal age of consent was 16 years, finding that a sentence which equated to 12 and a half months in custody in relation to the offence was reasonable.
[13] By s 3 of the Sentencing Act 2017 (SA): “The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general)”. See also s 9, which provides: “For the avoidance of doubt, the primary purpose for sentencing a defendant for an offence must be the paramount consideration when a court is determining and imposing the sentence”.

In those circumstances, the need to protect the young, and the weight which must be given to general deterrence, may well require that a first offender for this type of offence be imprisoned.[14]
[14] R v Petrovski [2005] SASC 330, [13] (Doyle CJ).
Sometimes the degree of acquiescence by the victim in sexual activity may be relevant when determining the objective seriousness of the offending, even though it cannot excuse it.[15] However, even where a child encourages or actively pursues the relevant sexual activity, that may not diminish the seriousness of the offending,[16] because in cases of a marked age disparity the child’s acquiescence is irrelevant to the criminality of conduct, particularly where it comprises exploitation.[17]
[15] Consent is not a defence, s 49(7) of the Criminal Law Consolidation Act 1935 (SA). See also R v Jackson [2014] SASCFC 101, [16]-[18] (Peek J, with whom Blue and Stanley JJ agreed). This case was an unsuccessful Crown appeal against sentence involving one count of unlawful sexual intercourse when the respondent, a serving police officer (taking a statement from the victim in connection with other sexual offending against her), was aged 30 and the victim a girl three days short of 17. The respondent received a sentence of one year and five months’ imprisonment with a non-parole period of nine months, which was suspended upon the entry into a bond to be of good behaviour.
[16] R v Petrovski [2005] SASC 330, [6] (Doyle CJ) and [27] (Bleby J).
[17] Evans v The Queen [2019] SASCFC 145, [33]-[34] (Kelly and Parker JJ, with whom Stanley J agreed): “it is doubtful whether consent could be relevant here given the age disparity between the appellant and the complainant … there may be some circumstances where consent may be relevant in the sense that it is part of the context in which to evaluate the degree of exploitation of the child” citing Clarkson v The Queen (2011) 32 VR 361, [36]-[40].
As for the offence of possessing child exploitation material, the objective seriousness will be determined by a range of matters which include the nature and content of the material, the number of images, whether the material was intended for further distribution or for sale or profit, the level of personal interest the defendant has in that material, and whether the conduct involved any risk of accidental discovery by innocent persons.[18]
[18] R v Padberg (2010) 107 SASR 386, [27] (Doyle CJ, with whom White J agreed) and R v Turvey (2017) 127 SASR 425, [134] (Hinton J, with whom Nicholson and Lovell JJ agreed). In the latter case it was recognised that the paramount public interest was promoting the protection of children with the result that general deterrence remained the primary sentencing consideration and, accordingly, relatively limited weight was given to a defendant’s prior good character.
Given the 2016 offending, the appellant could not be considered a first offender and so could not be given credit for good character.[19]
[19] R v McNamara (2009) 105 SASR 38, [31] (Vanstone J, with whom Kourakis J agreed): “[i]n my view it was wrong to give any credit for the lack of prior convictions for [similar] offences. It is not consistent with principle to compartmentalise issues of character in this way. The fact is the respondent could not claim credit for prior good character”.
Though few of these considerations were explicitly mentioned, there was no need for the sentencing Judge to do so. It seems clear enough that they informed her Honour’s approach. She fully and fairly outlined the circumstances of the offender and his offending, and recognised his significantly reduced moral culpability in the circumstances proved before her. There was here no proved exploitation and, though there was an age disparity of close to a decade, the appellant believed the victim to be at least 19 years old. Nonetheless, having regard to the victim impact statement, it was clear that the appellant’s offending had an ongoing adverse effect on her, causing the victim significant ongoing distress and strain in her familial and social relationships. As well, of course, the offending occurred whilst the appellant remained on parole.
The sentencing Judge recognised that because the offending involved what is defined as a “serious sexual offence” (being unlawful sexual intercourse) she was precluded by ss 71(2)(b)(ii) and 96(3)(ba) of the Sentencing Act 2017 (SA) from making an order for home detention or from suspending the sentence of imprisonment.[20]
[20] In part, this is because of the effect of amendments introduced in 2019, Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act2019 (SA).
As will be seen, counsel before the sentencing Judge were agreed that a sentence of imprisonment was appropriate. No particular challenge was directed to the starting point of 20 months as a head sentence. There was no complaint made about the discount given for the timing of the pleas of guilty (20 per cent), nor about the allowance (four months) for time spent on home detention bail between September 2018 and May 2020, although approximately two weeks was spent in custody between January and February 2019.
A preliminary matter – imprisonment conceded
Before addressing the appellant’s appeal contentions, it is convenient to first address what was described as a “preliminary matter”. This concerns the agreement or concession that the appellant must serve an immediate term of imprisonment. Immediately after the sentencing Judge heard the appellant’s evidence, counsel for the Director submitted, at the outset of her address:
… I think this is agreed, that the defendant must serve an immediate term of imprisonment. He is a serious sexual offender and therefore there is really, in my submission, no discretion in the circumstances of this matter as to home detention or suspension. I understand that is agreed by my learned friend [counsel for the defendant].
In her address the then counsel for the appellant took no issue with that submission, and put arguments about the “length of imprisonment that your Honour must now consider”. Later it was submitted that “a sentence of imprisonment is necessary” and a submission was made seeking “a lower than usual non-parole period”.
In my opinion, this case does not raise the type of agreement considered in cases such as R v Nemer, where Chief Justice Doyle emphasised:[21]
[The court] must exercise its own judgment and discretion in arriving at the appropriate sentence. … In particular, the court is not bound by any agreement or arrangement reached between counsel for the offender and the Director in the course of the sentencing process.
[21] R v Nemer (2003) 87 SASR 168, 173 (Doyle CJ), citing Malvaso v The Queen (1989) 168 CLR 227, 233.
There is no suggestion in this case of any formal agreement reached with the authority of the Director and defence counsel before the sentencing hearing. Rather, both counsel appeared to reach a common position before the sentencing Judge. This was reflected in the concession made by counsel for the appellant before the sentencing Judge. As to this kind of case, in R v Knipe Vanstone J explained that:[22]
I do not suggest that this concession by defence counsel necessarily prevents counsel now acting from attacking the failure to suspend the sentence.
[22] R v Knipe [2017] SASCFC 34, [21] (Vanstone J, with whom Parker and Doyle JJ agreed). In different contexts, similar observations have been made in R v Wilton (1981) 28 SASR 362, 368 and R v Allpass (1993) 72 A Crim R 561, 564-565. In R vKnipe Vanstone J added: “However, the earlier submissions tend to underline that this was indeed a case where it would have been quite inappropriate to suspend the sentence. In my view counsel’s acknowledgement that an immediate custodial sentence was called for was realistic and well-advised” (at [22]).
The question of an appropriate sentence remains a matter for the Court. The Court must exercise its own discretion and make its own judgement about what punishment should be imposed. That duty is not obviated by any concession or agreement by counsel. If I had thought that the sentencing Judge had erred in failing to order a bond under s 97, I would not regard any concession to the contrary made by former counsel for the appellant before the sentencing Judge as necessarily precluding a bond being sought on appeal.
However, in my opinion, the concession that an immediate term of imprisonment was appropriate was fairly made. As mentioned, the sentencing Judge was precluded from suspending the sentence of imprisonment or ordering that it be served on home detention. In addition, no bond was sought. Whilst a bond under s 97 can represent an appropriate sentencing option, with or without a conviction, it is something which falls squarely within the discretion of the sentencing Judge and will be informed by a range of considerations which include whether a bond is sought, the circumstances of the offender and the offending, any specific applicable legislative requirements and the purposes outlined in the Sentencing Act 2017 (SA).
I shall return to whether the sentencing Judge erred in failing to impose a bond under s 97.
Consideration of the appeal
The appellant contends that appeal grounds 1 and 1a disclose a “specific” or “process” error enlivening the jurisdiction of this Court to intervene.[23]
[23] See for example J,AD v The Queen [2020] SASCFC 73, [27]-[30] (Stanley J, with whom Kourakis CJ and Peek J agreed).
It will have been noticed that, in essence, ground 1 is inconsistent with and alternative to ground 1a. Ground 1 suggests that there was a failure to consider s 10(2) of the Sentencing Act 2017 (SA), whereas ground 1a suggests that, though s 10(2) was considered, there was error associated with its application. Sub-section 10(2) provides:
(2)Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that—
(a) the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or
(b) it is required for the purpose of protecting the safety of the community (whether as individuals or in general).
In my opinion, the failure by the sentencing Judge to refer to s 10(2) is of no moment. Not only is a sentencing Judge not required to refer explicitly to every consideration relevant to sentence,[24] there was here no occasion to refer to a provision relating to a matter which was regarded by both sides as clear: the offending in this case required the imposition of an immediate term of imprisonment.
[24] R v Reiner (1974) 8 SASR 102, 106 (Bray CJ), 114-115 (Wells J).
Accordingly, whilst I would not necessarily preclude a prisoner from challenging a sentence, or an aspect of a sentence, notwithstanding an earlier concession to the contrary, I would be reluctant to find that the exercise of sentencing discretion was flawed, or to entertain any contention that the reasons for sentence were inadequate, because they did not explicitly review something that was not in issue or not the subject of any submissions. Sub-section 10(2) was not mentioned because there was, before the sentencing Judge, no occasion to consider alternatives to imprisonment. Nonetheless, the general sentencing practice that immediate incarceration is, effectively, a matter of last resort (“the only penalty that can be justified”) was well recognised long before s 10(2) and it is not a matter which is likely to have been overlooked or ignored.[25] In that context, this case provided no occasion for any careful evaluation of the various features of s 10(2).[26] A sentencing Judge cannot be expected to address, or provide reasons for, a case which is not before her though it might eventually be pressed in the event of an appeal.
[25] Webb v O’Sullivan [1952] SASR 65, 66 (Napier CJ).
[26] For example, such as whether, under s 10(2) of the Sentencing Act 2017 (SA), a sentencing Judge may consider the broader circumstances of the offending, including the offender’s antecedents as well as the seriousness of the actual offence, Nicolle v Police (2019) 133 SASR 448, [14]-[15] (David AJ).
Accordingly, I would dismiss appeal ground 1a and grant permission for, but dismiss, appeal ground 1.
In my opinion, the real issue on this appeal is whether the sentence is manifestly excessive. That must be determined according to well-recognised criteria, making due allowance for the fact that the sentencing discretion was, at first instance, reposed in the sentencing Judge and not, absent demonstrable error, in the Court of Criminal Appeal. In AB v The Queen Hayne J explained the significance of the difference between specific error and manifest excess or inadequacy:[27]
The task of the Courts of Criminal Appeal in this country in hearing appeals against sentences is a limited task and it is governed by well-established principles that have been repeatedly stated. In particular:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
Such cases are, however, different from cases in which the complaint is that the sentence is manifestly excessive. There, as was said in House v The King:
“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
(Emphasis in original.) (Footnotes omitted.)
[27] AB v The Queen (1999) 198 CLR 111, [129]-[130].
Likewise, as Gleeson CJ and Hayne J explained in Dinsdale v The Queen:[28]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
[28] Dinsdale v The Queen (2000) 202 CLR 321, 325 [6].
Whatever the limitations associated with comparisons drawn from other cases,[29] and even if this offending is to be regarded as being at the “lower end” of the scale of seriousness because the appellant’s moral culpability is lessened by (amongst other matters) his honest and genuine belief that the victim was at least 19 years, the fact remained that the victim was 15 years and the appellant 26 years and on parole at the time of offending which involved not only explicit photographs but also serious sexual offending during their encounter.
[29] R v Petrovski [2005] SASC 330, [26] and Hunter v The Queen [1993] SASC 4231.
It is difficult to see how, in the circumstance of this case, the imposition of a sentence of imprisonment could be regarded as “unreasonable or plainly unjust”.[30] In my opinion, that outcome does not reveal error in the exercise of the sentencing discretion.
[30] House v The King (1936) 55 CLR 499.
As mentioned, there is no challenge to the proposition that the sentencing Judge was precluded by ss 71(2)(b)(ii) and 96(3)(ba) of the Sentencing Act 2017 (SA) from considering home detention or suspension in this case because the appellant was sentenced as an adult for an offence now defined as a “serious sexual offence”.
Before the commencement of the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA) a sentencing court was prohibited from ordering that a sentence of imprisonment imposed for a “serious sexual offence” be served on home detention unless the court was satisfied of the existence of “special reasons”. By contrast, that limitation did not apply to delimit when a sentencing court could suspend a term of imprisonment imposed in relation to a serious sexual offence. Put simply, the sentencing court was able to suspend a sentence of imprisonment but precluded from ordering that it be served on home detention except in limited circumstances.
The Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA), which came into effect on 23 May 2019, sought to bring the suspended sentence regime closer into line with the home detention regime. A sentencing court is now prohibited from ordering that a sentence of imprisonment imposed in relation to a serious sexual offence be served on home detention unless “the offence is a prescribed serious sexual offence that occurred in prescribed circumstances”, or, if this exception does not apply, the court is satisfied that “special reasons exist” for the making of a home detention order. The suspended sentence regime was also amended to preclude a sentencing court from imposing a suspended sentence for a “serious sexual offence” unless it occurred in “prescribed circumstances”, defined to include circumstances where the offender is 20 years of age or less, is of similar age to the victim and is not in a position of authority in relation to the victim.
This case does not raise any “prescribed circumstances”. Whereas the “special reasons” exception is maintained in respect of home detention orders, no argument was put to suggest that this case raises any “special reasons” or that home detention was appropriate.
On the hearing of the appeal, and probably in recognition of the effect of the 2019 amendments, argument focused on whether there should have been, either, a bond imposed under s 97 or a shorter sentence of imprisonment.
Although it was contended that release on a good behaviour bond under s 97 was available where the sentencing court “thinks that good reason exists for doing so”, it is difficult to regard the failure to order a bond as necessarily revealing error in the exercise of the sentencing discretion given the seriousness of this type of offending and the need for general deterrence and community protection. A bond under s 97 is far from axiomatic where the appellant is not a first offender and already on parole.[31] In a different context, in Dinsdale v The Queen Kirby J suggested that suspended sentences should not be imposed where “a non-custodial sentence would suffice”:[32]
Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified.
(Footnote omitted.)
[31] McManus v Police [2019] SASC 206 (bond under s 97 imposed on a resentence for indecent assualt contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) by a 58-year-old man, a first time offender, of a 16-year-old male in a public spa). See also R v Lomas and Symmons [2005] SASC 435, an unsuccessful Crown appeal: in the case of the respondent Lomas (19 years) who had no prior convictions, the offending consisted of causing a girl of 15 years to perform the act of fellatio upon him, in the case of the respondent Symmons (18 years) who also had no relevant prior convictions, the offending comprised two counts, one of digital penetration of the girl’s vagina and the other of penile-vaginal intercourse with her whilst all were affected by alcohol. The respondents reasonably believed that the girl was of age. Without recording a conviction, the sentencing Judge discharged each respondent on each entering into separate bonds in the sum of $500 to be of good behaviour for a period of 12 months. This was regarded as merciful.
[32] Dinsdale v The Queen (2000) 202 CLR 321, [76] (Kirby J).

Likewise, where a custodial sentence is appropriate, or at least within the range of appropriate sentencing options, it is erroneous to criticise the failure to impose the non-custodial option of a bond simply because neither home detention nor suspension were available absent proved “prescribed circumstances”, as now defined under the Sentencing Act 2017 (SA).
Whilst counsel for the appellant was reluctant to stipulate a specific sentence,[33] or a range of sentences,[34] below the 12 months ultimately imposed, the sentencing Judge’s favourable findings about the appellant’s belief concerning the victim’s age, and the apparent age of the victim as depicted in the photographs he received, were invoked to suggest that a “shorter” period of imprisonment should have been imposed.
[33] Albeit that in R v Jamieson (1988) 50 SASR 130, 133 (King CJ, with whom Jacobs and Cox JJ agreed) there was no suggestion that the defence cannot specify a term: “I should remark in passing that I think that any practice by which counsel representing the prosecution refers to a specific sentence as being appropriate is in general to be deprecated. … in general, the counsel appearing for the prosecution should refrain from becoming involved in submissions as to the specific terms of imprisonment which should be imposed”.
[34] Barbaro v The Queen (2014) 253 CLR 58, [7] (French CJ, Hayne, Kiefel and Bell JJ): “The prosecution’s statement of what are the bounds of the available range of sentences is a statement of opinion. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed. That being so, the prosecution is not required, and should not be permitted, to make such a statement of bounds to a sentencing judge”.
However, and in the circumstances already described, it cannot be said that a head sentence of 12 months was necessarily wrong or manifestly excessive. The same may be said of the non-parole period of 12 months.
Something more should be said about the non-parole period that was fixed. Because a sentence of imprisonment was imposed for the subject offending, s 75 of the Correctional Services Act 1982 (SA) rendered the appellant liable to “serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed”. By s 45(2) of the Sentencing Act 2017 (SA), any sentence imposed by the sentencing Judge had to “be cumulative on the sentence, or sentences, in respect of which the defendant was on parole”.
That meant that the appellant was, subject to the fixing of a non-parole period, liable to serve the unexpired balance of one year, three months and nine days from his earlier offending, together with whatever sentence was imposed for the subject offending.
Accordingly, the sentencing Judge started with a combined head sentence of two years, three months and nine days’ imprisonment. By s 47(2) the sentencing Judge was then required to fix a non-parole period in accordance with s 47(1)(a). She had regard to the appellant’s personal circumstances, and no doubt also to the circumstances of the antecedent and subject offending, when arriving at a non-parole period of 12 months. Self-evidently some of that non-parole period related to the antecedent offending, and some of it related to the subject offending. In the circumstances, it cannot be said that the non-parole period which she fixed was necessarily wrong or manifestly excessive.
There being no other specific challenge to the length of the sentence imposed, or to the non-parole period that was fixed, the complaint of manifest excess must be rejected and appeal ground 3 dismissed.
Conclusion
Accordingly, I would make the following orders in dismissing the appeal:
1The appellant is granted permission to appeal ground 1.
2Grounds 1, 1a and 3 are dismissed.
BLEBY J: I agree with Livesey J.