R v ARTHUR - [2019] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ARTHUR
[2019] SASCFC 4
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
16 January 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
Appeal against sentence.
The appellant pleaded guilty to four counts of producing child pornography and one count of aggravated making a communication with the intention of procuring a child under the proscribed age to engage in or submit to sexual activity. The offences were committed between 28 February 2015 and 28 October 2015.
The four counts of producing child pornography related to text message exchanges between the appellant and a female co-accused. For each count, the Judge imposed a sentence of three months and two weeks, to be served concurrently. The appellant does not challenge the sentences imposed with respect to these counts on appeal.
The offence of making a communication with the intention of procuring a child was comprised of a text message conversation between the appellant and the female co-accused, in which the appellant sought to procure her two year old daughter to be made available to an unidentified male for him to engage in sexual intercourse with the child. The Judge imposed a sentence of three years, reduced from a starting point of five years due to the appellant’s guilty plea. The Judge allowed a further reduction of three months due to the appellant having spent time in custody in the Australian Capital Territory immediately prior to his extradition to South Australia. The sentence was ordered to be served cumulatively on the sentence for the four counts of producing child pornography. A non-parole period of 18 months was fixed.
The circumstances of the appellant’s imprisonment in the ACT were that the appellant was taken into custody on 29 October 2015 with respect to three offences, relating to the transmission and possession of child exploitation material, committed prior to, during and at the end of the period of the South Australian offending. The appellant pleaded guilty and was sentenced to three years imprisonment, of which 13 months were suspended.
The effect of the sentences imposed in both the ACT and SA is that the appellant was sentenced to a total period of imprisonment for four years, 11 months and two weeks commencing 29 October 2015, with an effective non-parole period of three years and five months.
The appellant relies on three grounds of appeal: first, that the Judge erred in finding that the appellant could have had all of the offending dealt with by the Supreme Court of the ACT; second, that the Judge failed to apply the principles set out in Mill v The Queen (1988) 166 CLR 66; and finally, that the sentence imposed with respect to the making a communication offence was manifestly excessive.
Held per Kourakis CJ (Hinton J agreeing), allowing the appeal:
1.       The Judge failed to apply the principle articulated in Mill v The Queen. There was no valid reason not to structure the sentence such that the sentence imposed for the making a communication offence commenced at the same time as the sentences imposed for the other four counts.
2.       The sentence imposed for the making a communication offence is to commence on 29 September 2017, being the date that the sentences for the other four counts commenced. A non-parole of 16 months is fixed, also to commence on 29 September 2017.
3.       Having regard to the guilty plea discount, the head sentence for the making a communication offence was not manifestly excessive.
Per Nicholson J, contra:
1.       The Judge was not required to adopt the approach propounded in Mill v The Queen. However, the fact of the ACT sentences was relevant to the sentencing exercise.
2.       With respect to the making a communication offence, the starting point of five years, and after allowing a deduction for de facto currency, was manifestly excessive.
3.       The appellant be resentenced with respect to that offence to a term of imprisonment for two years and five months, to be served cumulatively with the other sentences imposed by the Judge. A non-parole period of 16 months commencing on 29 September 2017 is fixed.
Crimes Act 1900 (ACT) s 65; Criminal Code 1995 (Cth) s 474.19; Criminal Law Consolidation Act 1935 (SA) s 63, s 63B; Sentencing Act 2017 (SA) Sch 1 cl 2, referred to.
Mill v The Queen (1988) 166 CLR 59; R v Bui [2018] SASCFC 19; R v Todd (1982) 2 NSWLR 517, discussed.
Markarian v The Queen (2005) 228 CLR 357, considered.

R v ARTHUR
[2019] SASCFC 4
Court of Criminal Appeal: Kourakis CJ, Nicholson and Hinton JJ
KOURAKIS CJ.

I gratefully adopt the summary of the facts and the proceedings below set out in the judgment of Nicholson J. In relation to ground 2, I would state the principle articulated in Mill v The Queen[1] to be that a judge sentencing an offender serving a sentence or sentences of imprisonment imposed by a judge of another State should treat those sentences as if they had been imposed locally immediately before the judge proceeded to sentence.
[1] (1988) 166 CLR 59.
On that premise the sentences imposed on counts 1 to 4 would have been imposed concurrently with counts 1 to 3 as imposed in the Australian Capital Territory (ACT), namely using a carriage service to transmit child pornography and possessing child exploitation material, because as Nicholson J observes there is a close temporal proximity between those counts and because of the similarity of the offending. That was not possible here because the sentences were imposed in the ACT. However the same practical result could have been achieved by ordering that the sentence imposed on count 5 to commence at the same time as the sentence imposed on counts 1 to 4 of the Information. There was no valid reason not to so structure the sentence in this case. In failing to do so the Judge failed to apply the principle in Mill. I would allow the appeal on ground 2 for the purpose of so ordering and fix a non-parole period in the same proportion to the head sentence as that fixed by the Judge. The non-parole period imposed is 16 months, to commence on 29 September 2017.
I would not allow the appeal on ground 3 that the sentence imposed on count 5 is manifestly excessive. I accept that a difference of 12 months between the starting point of the Judge and the starting point of Nicholson J is significant and, indeed, some 20 per cent less than the Judge’s starting point. However, having regard to the guilty plea discount, the ultimate question is whether a sentence of three years is manifestly excessive, relative to a head sentence in the order of two years and five months. I am not persuaded that it is.
I also take a slightly different view of the seriousness of the offence. I accept that discussion about offending, even as horrendous as that proposed by the appellant, must be clearly distinguished from its commission. In raising the matter with CB’s mother, the appellant still fell far short of procuring the proposed conduct. However, if CB’s mother had reacted differently the appellant would then have taken steps which were more than mere preparatory conduct.
Moreover general deterrence is of relatively great importance in cases of this kind. Persons like the appellant must be deterred from canvassing the possible commission of offences of this kind with susceptible or vulnerable parents or carers.
NICHOLSON J.
Introduction
The appellant[2] pleaded guilty to four counts of producing child pornography (SA counts 1 to 4)[3] and one count of aggravated making a communication with the intention of procuring a child under the proscribed age to engage in or submit to sexual activity (SA count 5).[4] On 27 April 2018, the appellant was sentenced to a total period of imprisonment to be served of three years and two weeks with a non-parole period of 18 months, both to commence on 29 September 2017, being the date the appellant had been taken into custody in South Australia.
[2] Permission to appeal against sentence has previously been granted with respect to all three grounds of appeal raised in the Notice of Appeal filed 10 May 2018.
[3] The offence is prescribed by section 63(a) of the Criminal Law Consolidation Act 1935 (SA) and attracts a maximum penalty of imprisonment for 10 years. These four offences were each described in this way on the Magistrates Court Information, notwithstanding that at the time of the commission of the offences the terminology employed in the Act had been changed from “child pornography” to “child exploitation material”. The appellant has taken no issue with respect to the incorrect statement of the charge on the Information.
[4] The offence is prescribed by section 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) and attracts a maximum penalty of imprisonment for 12 years. The offence was charged in its aggravated form because the child in question, being only two years old, was under the prescribed age.
The grounds of appeal for which permission was granted prior to the hearing of the appeal are as follows.
1.The Learned Sentencing Judge erred in fact by finding that the appellant could have had the offending the subject of the appeal dealt with at the same time as earlier offending in the ACT.
2.The Learned Sentencing Judge erred by failing to take into account the lost opportunity for concurrency by reason of the failure to bring the appellant before the Court with respect to the present offending until the end of the custodial portion of the ACT sentence.
3.The sentence imposed on Count 5 was manifestly excessive.
During the hearing of the appeal, the appellant sought and was granted permission to amend appeal ground 2 to read:
The Learned Sentencing Judge erred by failing to apply the principles set out in Mill v The Queen (1988) 166 CLR 59 at 66 to the sentencing of the appellant.
For the reasons that follow, I would allow the appeal on the ground of manifest excess and resentence the appellant.
In order to understand the grounds of appeal and the manner by which they should be resolved, it is necessary to explain in a little detail the structure of the sentence imposed by the Judge for the South Australian offending but bearing in mind its relationship to other, earlier and in part concurrent, offending with respect to which the appellant had previously been sentenced in the Supreme Court of the Australian Capital Territory.
The South Australian sentences
SA counts 1 to 4 (producing child pornography) all concerned text message exchanges between the appellant who lived in Canberra and a female co-accused who lived in Whyalla. The appellant and the co-accused had been in a long-distance text based relationship. In the texts, both parties engaged in fantasy discussion involving sexual conduct with children. Whilst the exchanges met the definitions of child exploitation material and child pornography, no actual children were referred to in the exchanges and no child was exploited in any way.
The conduct underpinning each count was particularised in the Information to have occurred within a certain date range. However, it is sufficient to identify that all four counts were said to have occurred between 28 February 2015 and 28 October 2015. For each count, the Judge imposed a sentence of imprisonment for three months and two weeks, reduced from six months (approximately 40 per cent) on account of very early pleas. All of the sentences were ordered to be served concurrently, giving rise to an effective prison term of three months and two weeks to commence 29 September 2017. There is no challenge to the sentences imposed with respect to SA counts 1 to 4.
The actus reus of SA count 5 (aggravated making a communication with the intention of procuring a child) was comprised of a text message conversation between the appellant and the co-accused in which the appellant sought to procure the co-accused’s two year old daughter (referred to as CB) to be made available to an unidentified male (who happened to be an undercover police operative) for him to engage with the child in penetrative sexual intercourse. It will be necessary, in due course, to outline in more detail the circumstances of this offending.
The offence was particularised in the Information as having occurred between 24 October 2015 and 26 October 2015, that is, at the very end of the period identified above during which SA counts 1 to 4 (producing child pornography) were committed. For SA count 5, the Judge started with a separate penalty of five years imprisonment reduced to three years (a 40 per cent discount) on account of the very early plea. His Honour allowed a further reduction of three months “in consequence of the fact that [the appellant had] already spent some time in custody in the ACT”. The Judge ordered the sentence of two years and nine months to be served cumulatively on the three months and two weeks ordered with respect to SA counts 1 to 4, giving rise to a total period of imprisonment of three years and two weeks. The Judge fixed a non-parole period of 18 months.
The Australian Capital Territory sentences
Prior to, and towards the end of the period of the South Australian offending, the appellant committed a number of offences for which he fell to be sentenced in the Supreme Court of the Australian Capital Territory on 13 February 2017. The appellant had been taken into custody in the Australian Capital Territory on 29 October 2015 with respect to this offending which comprised three counts to each of which the appellant pleaded guilty.
ACT count 1 was an offence of using a carriage service to transmit child pornography material.[5] This offending was particularised to have taken place between about 28 November 2012 and 25 April 2014. The appellant was sentenced to imprisonment for a term of 21 months, commencing on 29 October 2015 and expiring 28 July 2017.[6]
[5] The offence is proscribed by section 474.19(1) of the Criminal Code 1995 (Cth) and attracts a maximum penalty of imprisonment for 15 years.
[6] For reasons explained by Robinson AJ in his sentencing remarks, no discount for the plea was allowed with respect to either of the Commonwealth offences, ACT count 1 and ACT count 2.
By ACT count 2, the appellant was charged with the same offence, this time particularised as having occurred on 25 October 2015, that is, within the three day period particularised for SA count 5 (aggravated making a communication with the intention of procuring a child). The appellant was sentenced to imprisonment for 15 months to commence on 28 July 2017 (that is, at the expiration of the sentence for ACT count 1) but to be suspended from 28 September 2017, after the appellant had served two months, upon the appellant entering into a bond to be of good behaviour.
ACT count 3 was an offence of possessing child exploitation material[7] which was particularised to have been committed on 29 October 2015, that is, some two days after the three day period particularised for the commission of SA count 5 (aggravated making communication with the intention of procuring a child). For ACT count 3, the appellant was sentenced to imprisonment for a term of three months and 18 days to commence on 28 April 2017.[8] In effect, this sentence was to be served wholly concurrently with that imposed for ACT count 1 and ACT count 2.
[7] The offence is proscribed by section 65 of the Crimes Act 1900 (ACT) and attracts a maximum penalty of imprisonment for seven years.
[8] Being a Territory offence, Robinson AJ was not restricted as to the bases on which a discount for the plea might be allowed. His Honour allowed a discount of 10 per cent.
The appellant’s conviction for one or more of the ACT counts caused him to breach a bond to be of good behaviour entered into in respect of the offence of possessing child pornography committed on 7 May 2010. That bond supported the suspension of a period of imprisonment for five months. The suspension was revoked and the appellant was ordered to serve that period of imprisonment commencing on 29 October 2015. In effect, the activated suspended term was to be served wholly concurrently with the prison sentence imposed for ACT count 1.
The net effect of the ACT sentencing exercise was that the appellant was imprisoned for three years from 29 October 2015 but with 13 months suspended from 28 September 2017, that is, after the appellant had served 23 months. It was upon his release on 28 September 2017, at the commencement of the suspended portion of the ACT sentence, that the appellant was extradited to South Australia and remanded in custody awaiting sentence for SA counts 1 to 5.
It would appear that the authorities in the ACT had access to the evidence that underpinned the offending the subject of the SA counts but did not charge the appellant with any offence in respect thereto. When it comes to consider the proper approach to sentencing for the SA counts, potentially relevant matters include that:
(i) the date of commission of ACT count 2 (25 October 2015) fell within but towards the very end of the period during which SA counts 1 to 4 were committed (28 February 2015 to 28 October 2015); and
(ii)ACT count 3 occurred on 29 October 2015, just one day after the expiration of the period during which SA counts 1 to 4 were committed and some three days after the expiration of the period during which SA count 5 was committed.
The practical effect of the SA sentencing package and the ACT sentencing package, considered together, is that the appellant was sentenced to a total period of imprisonment for four years, 11 months and two weeks, commencing 29 October 2015, made up of 23 months from 29 October 2015 to 28 September 2017, in the ACT, and three years and two weeks from 29 September 2017, in South Australia. In addition, the appellant remains subject to a further period of imprisonment in the ACT of 13 months suspended as from 28 September 2017. The appellant’s bond to be of good behaviour, entered into in the ACT with respect to this suspended portion of the sentence imposed for ACT count 2, expires on 28 September 2019.
The effective total non-parole period is three years and five months, being approximately 69 per cent of the effective total period of imprisonment of four years, 11 months and two weeks. That effective total non-parole period is made up of 23 months spent in custody in the ACT from 29 October 2015 to 28 September 2017 and the 18 month period fixed by the Judge with respect to the South Australian offending which commenced on 29 September 2017.
The appellant has appealed only with respect to the sentence imposed for SA count 5. By appeal ground 2, the appellant contends that the Judge committed a process error in the House v The King[9] sense, as that term has come to be understood, in that the Judge failed to pay proper regard to the sentence that had already been imposed on the appellant with respect to the ACT offending. In addition, and independently of any error committed in this respect, the appellant, in appeal ground 3, contends that a starting point of five years for SA count 5 is manifestly excessive.
[9] [1936] HCA 40; (1936) 55 CLR 499.
The factual basis for SA count 5

The appellant’s conduct in committing SA count 5 was such as to give rise to a very serious example of the offence of making a communication with the intention of procuring a child under the prescribed age to engage in or submit to sexual activity.
Part of the background leading to the commission of the offence (the text message conversation between the appellant and the co-accused) was an online chat between the appellant and an undercover police operative which occurred on 25 October 2015. The operative posed as an adult male from Brisbane engaging in online chat with the appellant who was, at the time, in the ACT. The appellant advised the operative that he had a two year old daughter who was better at fellatio than her mother.[10] The online chat then continued between the appellant and the operative. Both engaged in a vile and obscene exchange, the import of which was that for the sum of $5,000 the appellant could procure the two year old child to be made available to the undercover operative for penile/anal intercourse. The appellant also made reference to the possibility of a “mum daughter double”.
[10] The language employed by the appellant to express this notion was significantly more obscene.
Discussion ensued as to the practicalities or means by which such an assignation might be arranged. During the conversation with the undercover operative, the appellant sent him a number of images constituting child exploitation material, including three images of the co-accused’s two year old daughter, CB, which the appellant stated were of his two year old daughter. These images were part of the child exploitation material the subject of ACT count 2, the offence of using a carriage service to transmit child pornography material. They had previously been provided to the appellant by the co-accused.
Later that evening of 25 October 2015 and whilst the appellant was still communicating online with the undercover operative, the appellant engaged in a text message conversation with the co-accused during which they discussed whether the co-accused would allow her daughter to engage in sexual activity with a third party for the sum of $5,000. The conversation (which was the actus reus of SA count 5) was in these terms.
[Appellant]:    You need to come home I’ve just got an offer from a guy…but you might not like it
[Co-accused]:   (Photo sent of the co-accused)
[Co-accused]:   (Photo sent of CB drawing on a blackboard)
[Co-accused]:   ??
[Appellant]:    5k for a mother daughter double
[Co-accused]:   Not [CB]
[Appellant]:    Ok, I’ll have to put him off for a bit then
[Appellant]:    That’s a lot of cash though
[Co-accused]:   No! Even if we were on the streets starving it would still be no
[Appellant]:    Ok, ok
[Appellant]:    Sorry
[Co-accused]:   The only way I could consider it is if it’s only the one guy and he came on her or against her holes. No insertion at all in her.
[Appellant]:    Yeah, not sure that’s what he’s after… sigh.
[Appellant]:    Fair enough though
[Co-accused]:   You tell him the terms. if he takes it fine but if not too bad.
[Appellant]:    I wasn’t thinking, I know how you are about our angel
[Appellant]:    But you’d be open to letting him have his way with a different daughter?
[Co-accused]:   Yes
[Appellant]:    Then you REALLY need to come home, so we can start on that! Lol
The text message conversation on its face and looked at from the perspective of the appellant discloses a very serious example of the offence in question. It is true that the language employed by the appellant in that conversation is more moderate than that employed by the appellant or employed by the undercover officer and adopted by the appellant in their online chat. Nevertheless, it is plain enough that, in the text message conversation with the co-accused, the appellant was seeking access to the two year old, CB, for penetrative sexual intercourse of some nature as part of a “mother daughter double”. This is to be understood in the context of what the appellant would have been prepared to allow the undercover operative to do had the appellant been able to obtain access to CB.
The seriousness of the offending is moderated a little by the fact that when the co-accused made it plain that penetration would not be permitted, the appellant expressed disappointment and backed away. Curiously, the appellant and the co-accused then agreed that she would “be open to letting him have his way with a different daughter”. However, it is common ground that there was no other daughter and it would seem that the appellant and the co-accused had returned to some form of fantasy behaviour.
The more important considerations bearing on the seriousness of a particular example of the offence presently under consideration are these:
(i)the nature of the sexual conduct sought to be procured;
(ii)the age and vulnerabilities of the child in question, that is, the extent to which (insofar as can rationally be assessed) a victim is likely to be physically, emotionally and psychologically damaged by the envisaged conduct in (i);
(iii)the vulnerability of the recipient of the communication in the sense that communicating directly with a young vulnerable child may be more likely to succeed than communicating with a less vulnerable adult more capable of resisting;
(iv)the degree of risk that the attempt to procure might succeed which will involve a consideration of (iii) or where an adult is the recipient (as in this case) the vulnerable or collaborative nature of that adult; and
(v)the presence of a commercial motive.
The Judge’s approach to sentence
The Judge did not outline the nature of the SA count 5 offence in any detail. However, as is apparent from the sentence imposed and his Honour’s more general remarks, his Honour viewed the SA count 5 offence as very serious indeed. His Honour made these observations:
That [the appellant] should wish to do that with the child of a person he well knew, a child that was not a mere picture on the internet but a living, growing child, can only evoke feelings of complete disgust.
. . . .
I regard the count in which he sought to procure his girlfriend’s two year-old child for sexual intercourse as an extremely serious offence and considerably more serious than the offences in relation to producing child pornography by way of internet conversations.
The Judge briefly summarised the personal circumstances of the appellant in the following terms.
[The appellant] is a 32-year-old man. He, too, had an unpleasant childhood. He was overweight and bullied at school. He had an alcoholic mother and a mentally ill father and he was raised by his grandmother. He was sexually abused by his uncle before he was a teenager and started drinking alcohol and using cannabis at about age 12. He graduated to harder drugs at age 14.
He did relatively well at school but married at age 19, the marriage lasting for about a year. He has worked fairly steadily through his adult life but has had difficulties with alcohol. He has a supportive family in the ACT.
He has a criminal record which includes possessing child pornography in 2011, failing to report change of details in relation to the Child Sex Offenders Register in 2014 and 2015 and possessing a knife in 2016.
On 13 February 2017, the offender was sentenced in the ACT for offences of using a carriage service to transmit child pornography. He was released from custody in the ACT on 28 September 2017 and was extradited to South Australia, where he has been in custody since 29 September 2017.
The Judge noted the submission that had been made to the effect that the appellant was deprived of the opportunity of having all matters dealt with at the same time in the Australian Capital Territory but went on to observe:
Of course he could have requested the ACT court to deal with any matters outstanding that he wanted to have dealt with and that were within the jurisdiction of the Supreme Court of the ACT. He failed to do so.
So whilst I should take into account that he has recently spent some time incarcerated in the ACT, I regard the count in which he sought to procure his girlfriend’s two year-old child for sexual intercourse as an extremely serious offence and considerably more serious than the offences in relation to producing child pornography by way of internet conversations.
The Judge went on to impose the sentences for SA counts 1 to 4 and SA count 5 as earlier described. Insofar as SA count 5 is concerned, his Honour said this.
In relation to the sentence of procuring a child for sexual activity, I would impose a sentence of imprisonment for five years, but I would reduce that by 40% to three years.
I would reduce it further to two years, nine months in consequence of the fact that he has already spent some time in custody in the ACT. The sentence is to be served cumulatively with the sentence of three months, two weeks.
[Emphasis supplied]
After the delivery of the sentences, the following exchange occurred.
[COUNSEL FOR APPELLANT]:     I just wish to raise that in relation to the offending in the ACT, it was not the case that [the appellant] was able to call these matters up for sentence; they had not been laid.
HIS HONOUR:  They had not been laid?
[COUNSEL FOR PROSECUTION]: That is set out in my outline.
HIS HONOUR:  I suppose that is right up to a point, but you can ask for matters to be laid if you know there are outstanding matters, the same way you can call for a Magistrates Court file to be brought up before the District Court.
[COUNSEL FOR PROSECUTION]: Only that it should be noted that the authorities in the Australian Capital Territory knew about these allegations and I understand there was some consultation between their Director and our Director and somebody made a decision that no charges would be laid until he was dealt with there, so he was effectively deprived of the opportunity to have them dealt with as a package.
HIS HONOUR:  It makes no difference to the sentence. …
Appeal ground 1
Given that I would allow the appeal for other reasons, it is unnecessary to determine this appeal ground. However, I note that once the Judge had been provided with further factual background concerning the position initially taken, his Honour indicated that the issue had no effect on the sentence ultimately passed.
Appeal ground 2
By ground 2 the appellant complains that the Judge erred “by failing to apply the principle set out in Mill v The Queen (1988) 166 CLR 59 at 66 …”. The appellant identified this principle as that arising from the following passage in Mill.[11]
[T]he proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the appellant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.
. . . .
Without statutory authority [to impose the sentence concurrent with the earlier sentence in another State], the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respects of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.
[11] Appellant’s summary of argument at [19] and [20] quoting from the High Court’s judgment in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [16], 66-67 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
On one view, the High Court did no more than state a required approach in the circumstances of Mill and in analogous cases. I agree with the formulation of the principle for which Mill stands adopted by the Chief Justice in R v Bui.[12]
I take the principle identified in Mill v The Queen[13] to be that when sentences are imposed sequentially by courts in several States, subsequent sentencing courts must apply the principle of totality as if the previous sentence or sentences had been imposed in the same State. Accordingly, the longer period of time between the State and inter-State offending in this case and the offending in Mill affects only that aspect of the totality principle which supports concurrency, partial or total, in the case of offences closely connected temporally or causally. That aspect of the principle, which concerns the stricture that the total sentence should not be crushing and should allow for future rehabilitation, was applicable to the appellant’s sentencing.
[12] [2018] SASCFC 19 at [7].
[13] (1988) 166 CLR 59.
In Mill, the applicant for special leave to appeal had been convicted on 10 March 1988 in Queensland of one count of armed robbery in company committed in Queensland on 19 January 1980 (“the Queensland offence”). The applicant was sentenced to imprisonment with hard labour for eight years with a recommendation that he be considered for parole after serving three years. However, prior to committing the Queensland offence, the applicant had committed two other armed robberies in Victoria; one on 8 or 9 December 1979 and the other on 5 January 1980 (“the Victorian offences”).
It can be seen that all three offences were committed within a period of six weeks. The applicant was sentenced in September 1980 for the Victorian offences to an effective head sentence of 10 years with a non-parole period of eight years. It was following his release on parole in Victoria that the applicant was arrested and dealt with in Queensland for the Queensland offence. The sentence for the Queensland offence was imposed some eight years after the commission of that offence, during which period the applicant was serving the sentence imposed for the Victorian offences committed at or about the same time as the Queensland offence.
The High Court described the special leave question before it in the following terms.[14]
Special leave to appeal is now sought by the applicant on the ground that the case raises an important question regarding the appropriate principle of sentencing when crimes closely related in time and nature are committed in more than one State or Territory of the Commonwealth. In short, the submission advanced for the applicant is that in such a case the offender, when he comes to be sentenced in a different State or Territory from that in which the original sentencing court is located, should receive a sentence which would be consistent with the totality of the sentences he would have received if he had committed all the offences in the State or Territory of the original sentencing court and had been sentenced for all those offences on the same occasion.
[14] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [7], 62.
The High Court proceeded to consider this question in the context of a discussion of the totality principle. After identifying in uncontroversial terms the nature of that principle, the court observed that the application of the principle becomes more complicated where offences are committed “within a short space of time in more than one State”.[15] A problem which can arise is that the second State cannot proceed to sentence until the offender is released from custody in the first State and this may involve “a deferment of the processes of the criminal law in the second State for a period of years”. By way of addressing this problem, the High Court endorsed the following reasoning of Street CJ (with whose reasons Moffitt P and Nagle CJ at CL agreed) in R v Todd.[16]
[I]t would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. ...
... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
[15] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [10], 63.
[16] (1982) 2 NSWLR 517 at 519-520.
As part of its endorsement of the reasoning expounded in Todd, the High Court identified the circumstances in which it was to apply. In particular, this approach, where adopted, is to govern the sentencing exercise in the second State not just with respect to the non-parole period but also the head sentence. In these respects, the High Court said this.[17]
This, then, is the background against which the applicant's submission falls to be evaluated. In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. But, with respect, we think that the exposition of principle in Todd has been misunderstood by the Court of Criminal Appeal in Jenkyns and in the present case. The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd. The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.
[17] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [14], 65-66.
The “proper approach” which the sentencing Judge should have observed in Mill, as identified by the High Court, was called for in the context of and because of the following circumstances:
(i)the offender came to be sentenced many years after the commission of the offence in question;
(ii)that was because, during the intervening period, he had been serving a sentence imposed in another State; and
(iii)he was to be sentenced in respect of an offence of the same nature and committed at about the same time as that for which he had been incarcerated interstate.
As the High Court described it, the long deferment of trial or punishment in the second State with the consequent uncertainty as to what will happen raises considerations of fairness. One such consideration is that the State boundary will have denied to such an offender the opportunity of having the series of offences dealt with together by a sentencing court, thus limiting the flexibility otherwise available by the provision of concurrent sentences. A further consideration, raised in Todd and as endorsed by the High Court in Mill, is that fairness may require weight to be given to the progress of any rehabilitation during the term of the earlier sentence.

In the present case, the SA counts (being the second State offending) had a close temporal proximity with the first State offending, particularly ACT count 2 and ACT count 3. However, whilst SA counts 1 to 4 have a strong qualitative proximity with ACT counts 1 to 3, SA count 5 is of a different character and is significantly more serious.
SA count 5 does share similarities with ACT counts 1 to 3 in that all involve children and offending against children but the former is of a fundamentally different character, involving more than exploitation through the taking, possessing and sharing of imagery but an attempt to procure and orchestrate grotesque and vile sexual conduct with a two year old child.
Further, the ACT period of imprisonment actually served before the appellant came to be sentenced in South Australia was relatively short, a period of 23 months. Whilst it is important to recognise, as part of the personal circumstances of the appellant, that he had just completed a term of imprisonment of 23 months for related offending (and was still subject in the ACT to a suspended sentence of 13 months) and that, during that period in custody, he did engage in some acts of rehabilitation, the situation is not one which, in my view, fell within and required that the appellant be sentenced strictly in accordance with the “proper approach” identified by the High Court in Mill.
Mill was not applied by this Court in R v Bui.[18] Mill was distinguished on the basis that Mill and Todd dealt with the sentencing of a person “for a spate of offending over a short period” whereas in Bui the offender had undertaken three separate incursions into the criminal law over a period of about two and a half years.[19] As such, the foregone potential to allow concurrency, in part or in whole, (whether within a totality consideration or generally) was much lessened.
[18] [2018] SASCFC 19.
[19] R v Bui [2018] SASCFC 19 at [37] (Vanstone J with whom Kelly J agreed).
In the present case, and unlike in Bui, the issue of temporal proximity is raised. However, the different character and more serious nature of SA count 5 will operate to lessen the role of concurrency. In addition, the lack of any extensive delay in relative terms in sentencing for SA count 5 will also limit the potential for any genuine rehabilitation to have taken place during that period of delay whilst the appellant was in custody in the Australian Capital Territory.
I am not satisfied that the Judge in this case was required to adopt the approach propounded in Mill, that is, to ask in effect what was likely to have been the sentence(s) imposed if all offences had been committed in one jurisdiction and sentenced for at the same time. As such, the Judge did not err in failing to proceed in this manner and appeal ground 2 according to its terms is not made out.
However, that is not to say that the fact of the ACT sentences, including the nature and circumstances of the offences committed by the appellant the subject of those sentences, was not highly relevant to the sentencing exercise undertaken by the Judge. It was necessary for the Judge to impose a sentence for SA count 5 that was proportionate with respect to the offence committed in the context of the personal circumstances of the offender which included the ACT sentencing background. In particular, it must be recognised that the appellant did lose the opportunity for all offending to be dealt with at the same time, with the potential for some partial concurrency being allowed between the sentences for the South Australian offending and the sentences for the Australian Capital Territory offending.
The task before the Judge was to identify an appropriate and proportionate sentence for SA count 5 bearing in mind this background. The Judge expressly adverted to and took into account the Australian Capital Territory sentencing background. His Honour allowed a further reduction of three months from the sentence he otherwise would have imposed for SA count 5. This can be seen as a de facto recognition of the inability to order partial concurrency and a mathematical adjustment designed to accommodate and replicate such an order.
However, the making of an allowance in this way implies that the original starting point of five years (subject to the 40 per cent discount) was arrived at in isolation from and without consideration being given to those aspects of the appellant’s personal circumstances deriving from the ACT offending and sentencing. The question arises as to whether such an approach was itself incorrect.
The plurality in Markarian v The Queen[20] endorsed the instinctive synthesis approach to sentencing. In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. After considering some earlier authorities, the plurality continued as follows.[21]
Following Wong benches of five judges in New South Wales in R v Sharma and R v Whyte and in South Australia in R v Place, have sought to state general sentencing principles to be applied in those States. In the first two of these cases the Court of Criminal Appeal of New South Wales endorsed an approach of instinctive synthesis as a general rule but also accepted as a qualification that departure from it may be justified to allow for separate consideration of the objective circumstances of the crime. On occasions intermediate courts of appeal have however refused to find error where a staged approach has been undertaken. In Place the Court of Criminal Appeal of South Australia (Doyle CJ, Prior, Lander, Martin and Gray JJ) although it rejected a staged approach in general, made it clear that a reduction of penalty for a plea of guilty should be identified. This approach, their Honours held, was in conformity with the relevant sentencing legislation of South Australia.
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
[footnotes omitted]
[20] [2005] HCA 25; (2005) 228 CLR 357 at [37], 373-374 (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[21] [2005] HCA 25; (2005) 228 CLR 357 at [38]-[39].
The question arises whether the present case gave rise to an occasion where “some indulgence in an arithmetical process will better serve [the end of transparency or accessible reasoning]”. In my view, this was an occasion where the undoubted additional transparency provided by making a mathematical deduction was an acceptable approach. Had one Judge sentenced for all offences at the same time, it would have been open to that Judge to sentence separately for SA count 5 but to make an order for partial concurrency with respect to the sentence(s) imposed for other offending. In so doing, such a Judge would have nominated a proportion of the former sentence to be served at the same time as serving the latter sentence. In practical terms, this is what the Judge did.
Whether or not an allowance of three months as a proxy for partial concurrency was sufficient in the circumstances is a matter better dealt with as part of the consideration of appeal ground 3, manifest excess. An alternative and, in my view with respect, preferable approach would have been to arrive at a starting point (before plea discount) for SA count 5 that had already taken into account the ACT offending and sentences as part of the appellant’s personal circumstances. Nevertheless, I would dismiss appeal ground 2.
Appeal ground 3
The assertion of manifest excess requires an appellate court to review the discretionary decision made by the sentencing Judge. The principles of such a review are well established. It is not sufficient for an appellate court to conclude that it would have come to a decision different from that reached by the Judge. To succeed on appeal on the basis of manifest excess, it must be established that the Judge came to a decision that is unreasonable or plainly unjust.[22] In Markarian v The Queen,[23] Gleeson CJ, Gummow, Hayne and Callinan JJ said this.
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[footnote omitted]
In R v Morse,[24] King CJ identified the following as relevant considerations.
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
[22] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.
[23] [2005] HCA 25; (2005) 228 CLR 357 at [25], 370-371.
[24] (1979) 23 SASR 98 at 99.
As a general proposition, consideration will need to be given to all of the matters that are relevant to fixing the sentence but, as the High Court has observed in Hili v The Queen,[25] by its very nature a conclusion of manifest excess or manifest inadequacy is one that does not admit of lengthy exposition.
[25] [2010] HCA 45; (2010) 242 CLR 520 at [59], 538-9 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)
As already observed, the offence in question is a particularly abhorrent one. Further, for the reasons earlier set out, the offence as committed was a serious example of its type. In particular, when determining what would constitute a proportionate sentence, the fact that the intended victim, CB, was only two years old and by definition extraordinarily vulnerable, the nature of the conduct envisaged, the fact that CB was dependent on her mother for protection from the appellant with her mother also being a willing participant in other acts of depravity, thereby exacerbating the vulnerability of the child, were all very significant considerations.
It is difficult to assess the standards of sentencing customarily observed with respect to this type of offence.
First, sentencing for this type of offence occurs infrequently. I have considered a small number of sentences passed in this State with respect to offending of this nature. However, I have found any attempt at comparison unhelpful for the usual reasons but also because typically such sentences have involved the one penalty for a number of offences, often including child pornography offences. I have not been able to identify the imposition of a penalty for this offence standing alone which approaches a starting point of five years. In addition, the factual basis for the offending in the present case is quite unusual.
Second, the offence itself does not involve the actual conduct envisaged but rather the making of a communication with the intention of procuring certain conduct envisaged. It can be relatively easy to compare the seriousness of one type of illegal sexual conduct as compared with another type of illegal sexual conduct and bearing in mind the surrounding circumstances of each case. However, it is not so easy to compare a communication directed at one form of possible conduct with a communication directed at different forms of possible conduct, bearing in mind that in either case (as here) the conduct may never actually eventuate or, if it does, some different perhaps lesser form of conduct might ultimately be engaged in.
As it happens, in this case, the appellant voluntarily desisted from persisting with his attempt at procuring access to the child, CB, when he received resistance from the child’s mother. However, the offence was complete when he made the communication and notwithstanding that it quickly became apparent that he would be unsuccessful. Ultimately, the intended victim was never harmed.
An overarching consideration is the maximum penalty for this offence imposed by the legislature which is imprisonment for 12 years. This is indicative of the fact that the legislature, and therefore the community, regards this type of offence as very serious indeed. Gleeson CJ, Gummow, Hayne and Callinan JJ observed the following in Markarian v The Queen.[26]
[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
[26] [2005] HCA 25; (2005) 228 CLR 357 at [31], 372.
Of course, the appellant’s personal circumstances as earlier outlined and including in particular the fact that, immediately prior to being sentenced for the SA offending, he had spent a not insignificant period of time in custody in connection with related offending, were matters to be taken into account, as was the need to fashion a sentence that would serve the purposes of deterrence, particularly in this case personal deterrence. In this latter respect, I take the view, given the appellant’s prior record and background, that his prospects for rehabilitation remain guarded.
In all the circumstances, I am of the view that a starting point of five years and after allowing a deduction of three months for de facto concurrency with respect to the ACT sentences was manifestly excessive. I would allow the appeal on this ground and proceed to resentence the appellant.
Resentencing
When it comes to resentencing the appellant, the question arises as to whether any such resentencing is to take place in accordance with the Criminal Law (Sentencing) Act 1988 now repealed or its replacement Act, the Sentencing Act 2017. It may be that in the circumstances of this case there are material differences between the two sentencing regimes. This question is to be determined by the proper construction of the transitional provision of Schedule 1 to the new Act and noting that this Act came into effect on 30 April 2018. Clause 2(1) of the transitional provision provides:
Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.
The issue, in short, is whether or not this provision embraces a situation where an offender has been sentenced pursuant to the old Act but falls to be resentenced following a successful appeal after the commencement of the new Act. The Director of Public Prosecutions has advised the Court in the context of the present proceedings that, in light of the recent comments of this Court in R v Pishdari & Ors,[27] the Director does not now oppose any resentencing of the appellant in this matter, should it occur, in accordance with the Criminal Law (Sentencing) Act 1988 and no longer presses any argument to the effect that any resentencing should take place pursuant to the Sentencing Act 2017. In my view, the concession of the Director, insofar as it goes, is appropriate. I am of the view, essentially for the reasons given by the Chief Justice by way of obiter in Pishdari[28] that, where an offender has been sentenced pursuant to the old Act and falls to be resentenced following a successful appeal after the commencement of the new Act, that offender is to be resentenced in accordance with the old Act. The transitional provision set out above is to be construed as applying to a first instance sentencing exercise but as not applying to a resentencing exercise following a successful appeal.
[27] [2018] SASCFC 94.
[28] [2018] SASCFC 94 at [7]-[9].
Insofar as SA count 5 (the only sentence under appeal) is concerned, I would start with a term of imprisonment for four years and would reduce that by a shade under 40 per cent on account of the early plea to two years and five months. Like the Judge, I would order that sentence to be served cumulatively with the sentence of three months and two weeks imposed with respect to SA counts 1 to 4, giving rise to a total period of imprisonment with respect to SA counts 1 to 5 of two years, eight months and two weeks. I would fix a non-parole period of 16 months to commence on 29 September 2017 which is the date that the sentences for SA counts 1 to 4 commenced.
HINTON J.
I have had the advantage of reading the reasons of Kourakis CJ and of Nicholson J in draft for which I am grateful.
I agree with the Chief Justice for the reasons that he gives that the second ground of appeal is made out. As for the third ground of appeal, I too am not persuaded that the sentence imposed on SA count 5 was manifestly excessive. I agree with the Chief Justice’s reasons and with his observations as to the seriousness of the offence and the importance of general deterrence. I agree that the appellant should be re-sentenced in accordance with the reasons of the Chief Justice.