R v Brandon

[2024] SASCA 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v BRANDON

[2024] SASCA 9

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

8 February 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE

The respondent pleaded guilty to one "basic" offence of possessing child exploitation material between 2015 and 2022 comprising 54 images or videos.  This was the respondent’s second offence, and therefore a “subsequent” offence.  The maximum penalty for this offending was imprisonment for seven years.  At the time of sentencing, the respondent was 50 years.

The sentencing judge imposed a sentence of nine months’ imprisonment which, when reduced by 25 per cent for the respondent’s plea of guilty, became a sentence of six months and 23 days.

The sentencing judge was satisfied that it was an appropriate case for partial suspension pursuant to s 96(4) of the Sentencing Act 2017 (SA), requiring the respondent to serve one month and 23 days’ imprisonment, with the balance of five months suspended on entry into a two-year bond.

The Director appealed against the sentence on the basis that the sentence imposed was manifestly inadequate.

The Court held (granting the Director permission to appeal sentence):

1.Though this case does not involve a large number of images, and on that criterion may not be as objectively serious as a number of other cases, that must be counter-balanced by the following features:

-       The images were of a most serious kind.   A number would have been within categories 4 or 5 of the COPINE scale. 

-       The offending was deliberately undertaken by a respondent who had already been convicted for this kind of offending, and it commenced whilst the respondent was on a suspended sentence bond for that offending. 

-       The offending spanned a number of years. 

-       At the time of his offending, the respondent was on the Child Sex Offenders Register and subject to the requirements of the Child Sex Offenders Registration Act 2006 (SA).

2.When sentencing for offending involving child exploitation material, limited weight will be given to a defendant’s personal circumstances, including prior good character, and emphasis must be given to deterrence in order to protect the safety of the community.

3.The sentence of nine months is manifestly inadequate and, in the circumstances of this case, there was no good reason to partially suspend the sentence.  This is a proper case in which to grant the Director permission to appeal sentence.  The imminent release of the respondent is outweighed by the need for this Court’s principled intervention.  The sentence is so markedly short of the reasonably available range that it may undermine public confidence in the administration of justice.

4.The appeal is allowed and the sentence imposed in the District Court is set aside.

5.On re-sentence, after commencing with a sentence of 20 months and reducing that by 25 per cent on account of his plea, the respondent is sentenced to a term of imprisonment of 15 months together with a non-parole period of ten months, both backdated to commence from 18 December 2023.

6.The mobile telephones seized by police will be forfeited pursuant to s 63D of the Criminal Law Consolidation Act 1935 (SA).

Child Sex Offenders Registration Act 2006 (SA); Criminal Law Consolidation Act 1935 (SA) ss 5AA, 63; Criminal Procedure Act 1921 (SA) ss 157; Sentencing Act 2017 (SA) ss 3, 9, 47, 96; Statutes Amendment (Child Sex Offences) Act 2022, referred to.
Deng v The King (No 2) [2023] SASCA 45; Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; Director of Public Prosecutions v Hum (a pseudonym) [2022] VSCA 57; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; Hopkins v Police [2021] SASC 108; Newson v Police [2015] SASC 105; Police v Schmidt; Attorney-General (SA) v Schmidt [2018] SASC 80; Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; R v Beaumont [2023] SASCA 128; R v CAB [2020] SASCFC 33; R v Cardwell [2021] QCA 112; R v Checchin [2017] SASCFC 109; R v De Leeuw [2015] NSWCCA 183; R v Harris [2023] SASCA 129; R v Henderson (2023) 104 MVR 68; R v Lian [2023] SASCA 122; R v Nankivell [2022] SASCA 87; R v Nemer (2003) 87 SASR 168; R v Oliver [2003] 1 Cr App R 28; R v Padberg (2010) 107 SASR 386; R v Turvey (2017) 127 SASR 425; R v Yaroslavceff [2022] SASCA 123; Snodgrass v The Queen [2021] SASCFC 20; Stenecker v Police (2014) 120 SASR 18; Stocks v The King [2023] SASCA 48; The Queen v De Simoni (1981) 147 CLR 383, considered.

R v BRANDON
[2024] SASCA 9

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

THE COURT:

Introduction

1. This is an application for permission to appeal against sentence by the Director of Public Prosecutions (SA) (the Director) pursuant to s 157 of the Criminal Procedure Act 1921 (SA).

2. The matter has been called on urgently because the effect of the order made by the sentencing judge on 18 December 2023 is that the respondent was only required to serve one month and 23 days’ imprisonment and from Thursday, 8 February 2024, he will be eligible to be released on a two-year bond.

3. The respondent pleaded guilty to one “basic” offence of possess child exploitation material, contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty was seven years’ imprisonment.  This was the respondent’s second offence, and therefore a “subsequent offence” for the purposes of that Act.[1] 

   [1] Until recently, s 63A(1) of the CLCA classified possess child exploitation material offending into basic and aggravated offending, and first and subsequent offences. The difference between a basic offence and an aggravated offence was that the latter entailed an offender committing the offence knowing that the victim of the offence was, at the time of the offence, under the age of 14 years, see s 5AA(1)(e)(i). The maximum penalty for a first offence had been: for a basic offence, imprisonment for 5 years and for an aggravated offence, 7 years. For a subsequent offence the maximum penalty had been: basic, imprisonment for 7 years and aggravated, 10 years. See footnote 27 regarding the 2022 amendments (below).

4. The sentencing judge imposed a sentence of nine months’ imprisonment which, when reduced by 25 per cent for the respondent’s plea of guilty, became a sentence of six months and 23 days. Although the sentencing judge found that this was not an appropriate case for ordering that the sentence be served on home detention, his Honour was satisfied that it was an appropriate case for partial suspension pursuant to s 96(4) of the Sentencing Act 2017 (SA). The effect was that the respondent was required to serve one month and 23 days’ imprisonment and the balance of five months was suspended on entry into a two-year bond.

5. The Director’s primary contention was that the sentence is manifestly inadequate.  Following the hearing of this matter, the Court announced that the Director would be granted permission to appeal, the appeal would be allowed, and the respondent resentenced.  Orders were made accordingly.  These are the reasons for the making of those orders.

   The circumstances of the offending

6. On 7 September 2022 police attended at the respondent’s residence to conduct a compliance check pursuant to the Child Sex Offenders Registration Act 2006 (SA). The respondent was requested to provide his electronic devices, including two mobile telephones.

7. Subsequent investigation revealed 54 images or videos of child exploitation material, amongst more than 6,000 items of a pornographic nature.  Two items fell within category 1, concerning children under 13 years.[2]  The balance fell within category 2, concerning children under 18 years.  These categories are taken from the ‘Australian Child Abuse Categorisation Schema’ (the ACACS), which has apparently been used in South Australia since 2022.[3]  This categorisation is different and less prescriptive than the Oliver[4] and COPINE[5] scales formerly used.  The present categories are differentiated only by whether real children are depicted who are perceived to be (1) under 13 years, or (2) 13 years or older.  Accordingly, images or videos that might formerly have been addressed within specific categories – including the most serious - may now be wholly accommodated within one or both of the ACACS categories depending only on the perceived ages of the children depicted. 

   [2]     This category involves an image of a real child, pre-pubescent, perceived to be under 13 years of age, involved in a sex act, witnessing a sex act or material which is clearly focussed/concentrated on the anal or genital region of the child. 

   [3]     Which is very similar to the Interpol Baseline categorisation system discussed in R v Cardwell [2021] QCA 112, [6] (Sofronoff P, with whom Mullins JA and Bradley J agreed). See also the affidavit of Adam Blackburn dated 4 January 2023, Annexure B.

   [4]     R v Nankivell [2022] SASCA 87, [9] (Livesey P, Doyle and Bleby JJA). See R v Oliver [2003] 1 Cr App R 28, discussed in R v Turvey (2017) 127 SASR 425, [141] (Hinton J, Nicholson and Lovell JJ agreeing).

   [5]     R v Padberg (2010) 107 SASR 386, [9] (Doyle CJ, White J agreeing).

8. The images and videos in this case were accessed or saved on the respondent’s mobile phones between 2015 and 2022.[6]  Around a third were accessed whilst the respondent was on a bond for prior offending involving child pornography, shortly to be mentioned.  The content of these images was described by the sentencing judge as “despicable”.  One example given by the investigating police was as follows:

   … 2 female children aged about 15 years old standing together naked with the following text on the image:

   “This is Nikki, the new friend I told you about daddy (sic) we met at a survivors of abuse support group, she was molested and abused by her step dad and brother. Can she play the rape game with you and I daddy? Pretty please? She’s a desperate filthy rape slut just like me”.

   [6]     Submissions transcript, 24 July 2023, p 5.

9. Other images depicted young female children aged about 13 or 14 years engaged in sexual activity with adult males, including oral and penetrative sexual activity.  One image depicted an adult male forcefully using a strap around the neck of a naked girl aged around 12 years which restricted her breathing.

10. Counsel for the respondent submitted that the offending images formed a very small part of a much larger collection of legal adult pornography.  Whilst true, this is of little significance where the respondent admitted that whilst looking at legal pornography he discovered the offending material and selected, saved and, indeed, masturbated with it.

11. Previously, at the age of 14 years, the respondent had been convicted of unlawful sexual intercourse with a seven-year-old boy. The report of Mr Fugler, psychologist, dated 16 November 2014 records that the respondent then engaged in six months of “treatment” with a psychologist, Mr Alan Jenkins. 

12. Subsequently, on 10 December 2014, the respondent was sentenced to nine months’ imprisonment in the Holden Hill Magistrates Court for possessing child pornography. This reflected a reduction from 12 months on account of his guilty plea.  The circumstances of that offending were very serious and involved many more images or videos than the subject offending in a context where the respondent had been communicating with teenage girls in “chat rooms” and had persuaded some to send naked images of themselves to him.[7] That sentence was suspended upon the respondent entering into a bond to be of good behaviour for three years, with supervision for 12 months.  The presiding magistrate clearly warned the respondent about the consequences of re-offending:[8]

    I am prepared to suspend the operation of the sentence given the [counselling] efforts you have made, but you must be fully aware at this stage that any similar offending will inevitably land you in gaol.  Had it not been for your guilty plea, I would have imposed a period of imprisonment of 12 months. 

    [7]     Following an analysis of the images police discovered 121 Non-Aggravated Category 1 images, one Aggravated Category 1 image, and one Aggravating Category 5 image – categorised under the COPINE scale.

    [8]     Sentencing remarks of Magistrate C Deland dated 10 December 2014, [3].

13. At that stage, the respondent was already on the ANCOR register.

14. Although the respondent completed a program at Owenia House in 2015, pursuant to the conditions of the three-year bond, the respondent continued to access child exploitation material during the period of the bond, and thereafter. 

15. Whilst the sentencing judge expressly refrained from punishing the respondent for these uncharged acts,[9] he said that he took them into account in order to assess the respondent’s rehabilitation prospects as well as “to limit the mercy available to you”. 

    The circumstances of the offender

    [9]     Citing The Queen v De Simoni (1981) 147 CLR 383.

16. At the time of sentence the respondent was 50 years and had enjoyed a good upbringing despite his father’s long-term mental health issues.  He had completed year 12 and commenced a Bachelor of Applied Science, Computer and Information Science, although that degree was not completed.  The respondent had a reasonable work history and seems to have been in continuous employment. 

17. The respondent had been married and he and his former wife have a son who was approximately 13 years at the time of sentence. 

18. The sentencing judge had regard to psychology reports from Dr Lim dated 19 June 2023 and Ms Morrell dated 17 November 2023, as well as other material including a letter of support from the respondent’s former wife. 

19. The offending occurred in the context of what Dr Lim diagnosed as a pornography addiction.  Whilst neither psychologist found that the respondent met the formal diagnostic criteria for Paedophilic Disorder, there were some paedophilic proclivities together with a strong, persistent sexual interest in pubescent children as well as children in mid to late adolescence.  According to Dr Lim:[10]

    … Mr Brandon would likely be classified as having either a Hebephilia sexual orientation or an Ephebophilia sexual orientation.

    Hebephilia is defined as the strong, persistent sexual interest by adults in pubescent children who are in early adolescence, typically between the ages of 11 to 14 years old. Ephebophilia as mentioned, refers to a sexual interest in mid-to-late adolescents, typically aged between 15 to 19 years old. Of note, neither of these conditions have been included in the DSM-5-TR as a formal psychiatric or psychological disorder, as there remains a need for further research and understanding into these conditions in part because there are various legal and cultural implications to consider …

    [10]   Appeal book, page 69.

20. Both psychologists found that the respondent had struggled with a persistent depressive disorder for some years and that the risk of sexual recidivism in connection with internet-based material was regarded as being in the moderate to high range. 

    The approach of the sentencing judge

21. The sentencing judge found that the offending was very serious,[11] and there was a need for a deterrent penalty so as to protect the community, especially children, from predatory sexual abuse. The children who were victims of this form of abuse were, his Honour explained, subjected to degrading and humiliating acts.

    [11]   Referring to the considerations outlined in R v De Leeuw [2015] NSWCCA 183, [72].

22. The sentencing judge found that this was not an appropriate case for home detention having regard to the paramount consideration of the protection of the safety of the community.  However, his Honour found that this meant that the respondent “must serve at least part” of the sentence in custody. 

23. The sentencing judge referred to the relatively low number of images, the respondent’s favourable personal circumstances and the progress that he had made in therapy with Ms Morrell as demonstrating that there was good reason for suspension within the meaning of s 96(1) of the Sentencing Act 2017 (SA). Because the sentence imposed was more than three months but less than 12 months, partial suspension was available under s 96(4).

    The determination of the application for permission to appeal

24. It is not necessary to address in any detail the requirements for granting permission to appeal in this case.  These have been considered in a number of recent cases,[12] including cases involving offending concerning child exploitation material,[13] as well as cases of failing to comply with reporting obligations.[14]  As was recently explained in R v Harris:[15]

    The requirement that permission to appeal sentence will only be granted to the prosecution in “rare and exceptional” cases reinforces the public policy features which must be observed by the appeal court, as well as the exceptional nature of the course the appeal court is being invited to take.  This requires an analysis which is both qualitative and comparative.[16]  It is necessary for the prosecution to demonstrate that considerations relating to double jeopardy are outweighed by the need for this Court’s principled intervention. 

    [12]   See, for example, R v Beaumont [2023] SASCA 128, [23]-[24] (Livesey P, Lovell and Bleby JJA).

    [13]   R v Nankivell [2022] SASCA 87, [33]-[35] (Livesey P, Doyle and Bleby JJA).

    [14]   R v CAB [2020] SASCFC 33, [8]-[13] (Livesey J, with whom Kourakis CJ and Doyle J agreed).

    [15]   R v Harris [2023] SASCA 129, [49].

    [16]   R v Yaroslavceff [2022] SASCA 123; R v Henderson (2023) 104 MVR 68, [34] (Livesey P and David JA).

25. There is no suggestion that the sentencing judge made any specific error.  It is the outcome which is attacked.  The starting point for this Court is the objective seriousness of the offending. The relevant considerations, and the need for a relatively uniform approach to the principles governing sentencing for this kind of offending across Australia, have been addressed in a number of cases including the recent decision of this Court in R v Nankivell:[17]

    [17]   R v Nankivell [2022] SASCA 87, [37] (Livesey P, Doyle and Bleby JJA).

    The considerations underpinning the objective seriousness of CEM offending generally, and relevant to the relative seriousness of particular CEM offending, have been addressed at length in several decisions of this Court, including R v Padberg[18] and R v Turvey.[19]In the former, Doyle CJ referred to a number of authorities that in combination suggested a relatively uniform approach across the nation to the principles governing sentencing for child pornography offences.[20]  In the latter, the Court adopted the following summary of those principles from R v De Leeuw:[21]

    [18]   R v Padberg (2010) 107 SASR 386.

    [19]   R v Turvey (2017) 127 SASR 425.

    [20]   R v Padberg (2010) 107 SASR 386, [27]-[29] (Doyle CJ, White J agreeing).

    [21]   R v De Leeuw [2015] NSWCCA 183, [72] (Johnson J, Ward JA and Garling J agreeing) (omitting citations); applied in this State in R v Turvey (2017) 127 SASR 425, [134] (Hinton J, Nicholson and Lovell JJ agreeing), R v Cecchin [2017] SASCFC 109, [52] (Lovell J, Parker and Doyle JJ agreeing) and Snodgrass v The Queen [2021] SASCFC 20, [84] (Hughes J, Peek and Doyle JJ agreeing); also adopted by the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800, [25] (Redlich and Beach JJA) and Director of Public Prosecutions v Hum(a pseudonym) [2022] VSCA 57, [113] (Kyrou, Niall and Whelan JJA).

    (a)Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted;

    (b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:

    (i)      the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

    (ii)     the number of items or images possessed;

    (iii)    whether the material is for the purpose of sale or further distribution;

    (iv)    whether the offender will profit from the offence;

    (v)     in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and

    (vi)    the length of time for which the pornographic material was possessed.

    (c) General deterrence is the primary sentencing consideration for offending involving child pornography;

    (d)     Less or limited weight is given to an offender’s prior good character;

    (e)Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography;

    (f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet;

    (g) The possession of child pornography material creates a market for the continued corruption and exploitation of children;

    (h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market; and

    (i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.

    (Citations in original.)

1. Though it is true that this case does not involve a large number of images, and on that criterion may not be as objectively serious as a number of other cases that have come before the Court,[22] that must be counter-balanced by the following features.  The images were of a most serious kind.  A number would have been within categories 4 or 5 of the COPINE scale.  The offending was deliberately undertaken by a respondent who had already been convicted for this kind of offending, and it commenced when the respondent was on a suspended sentence bond for that offending.  The offending spanned a number of years.  At the time of his offending, the respondent was on the Child Sex Offenders Register and subject to the requirements of the Child Sex Offenders Registration Act 2006 (SA).

   [22]   Though in R v Padberg (2010) 107 SASR 386, [41], Kourakis J (as he was, albeit in dissent) thought that the enormous volume of material in that case “loses some of its significance as a measure of the depravity of [the respondent’s] conduct because of the quantity of material available which can be accessed and the ease with which it can be downloaded through the internet”.

2. Whilst the respondent is not to be punished for uncharged offending, these features demonstrated that personal deterrence was an important consideration and that there was very limited scope for leniency.

3. The production and distribution of child exploitation material is encouraged by the sad prospect that there appears to be a ready market for it.  Whatever the size of that market, its existence promotes the creation of this pernicious material and the damaging and degrading exploitation of the children who feature in it.  The exploitation and abuse of children for the sexual gratification of adults is not tolerated by our community,[23] “wherever in the world it occurs”.[24] As Doyle CJ explained in R v Padberg, that means that this kind of offending will usually call for a sentence of imprisonment which must be served:[25]

   It is clear that there is an international market in child pornography, as well as a market within Australia. Those who are part of the market for this material share the responsibility for what is done to the children depicted. The creation and dissemination of child pornography material is a serious social evil, and those who acquire and use such material must be held accountable for the part that they play in the persistence of this social evil.

   When sentencing offenders, general deterrence must be given a high weighting. The prevalence of child pornography material, and its availability through the internet, mean that potential users of such material must be warned that, if detected, they will be punished most severely.

   Offences of this kind will usually require a custodial sentence and will usually call for a period of imprisonment to be served. I mean offences of the kind charged, committed over a significant period of time, involving a substantial amount of pornographic material and involving child pornography of the most serious kind. I am not referring to offences of this kind when payment is made by the offender for the material, nor when the offender has distributed the material to others, either freely or in return for payment. If those matters are present, they are likely to raise the offending to another level of seriousness. For offending of the present kind a period of imprisonment to be served will ordinarily be appropriate even though the offender has pleaded guilty and has no previous convictions. That is not to say that a wholly suspended sentence can never be appropriate in such cases. Each case has to be considered on its own facts.

   [23]   See, for example, the recent cases of R v Lian [2023] SASCA 122 (Kourakis CJ, Lovell and Doyle JJA); R v Beaumont [2023] SASCA 128 (Livesey P, Lovell and Bleby JJA); R v Harris [2023] SASCA 129 (Livesey P, Lovell and Bleby JJA).

   [24]   R v Padberg (2010) 107 SASR 386, [41] (Kourakis J).

   [25]   R v Padberg (2010) 107 SASR 386, [20]-[22] (Doyle CJ, White J agreeing). Nonetheless, the unusual facts of Stocks v The King [2023] SASCA 48 (Doyle, Bleby and David JJA) provide an example of a case where a two-year bond, with supervision, was substituted for a sentence of imprisonment: in that case the appellant was sentenced on the basis that he believed that the one episode of disseminating child exploitation material – which was entirely fictitious - during a WhatsApp conversation with an undercover police officer, might be protecting a child from a sexual predator, rather than for his own sexual satisfaction.

4. In that case the former Chief Justice expressed the view that it may be difficult to justify a wholly suspended sentence and, “more significantly”, consideration should be given to “increasing the standard of sentencing for offending of this kind”:[26]

   My review of the cases indicates that there is an established market or trade in child pornography emanating from other countries, and accessible through the internet. If sentences at the present level, coupled with the risk of detection, are not sufficient to diminish this trade, it may be appropriate for courts to increase the level of sentencing. That is a matter that can only be decided in an appropriate case, brought by the Director. As Commonwealth offences are involved the court considering any such case will have to consider sentencing patterns in other jurisdictions.

   [26]   R v Padberg (2010) 107 SASR 386, [36] (Doyle CJ, White J agreeing).

5. The cases reviewed by this Court in R v Nankivell suggest that there has been a hardening in both community attitudes to and sentences for this kind of offending over the last decade or so, after R v Padberg was decided.[27]

   [27]   R v Nankivell [2022] SASCA 87, [41]-[42] (Livesey P, Doyle and Bleby JJA). On 1 October 2022 the maximum penalty under s 63A(1) of the CLCA was increased to imprisonment for 12 years (Statutes Amendment (Child Sex Offences) Act 2022 (SA)). The classifications between basic and aggravated offending, as well as between first and subsequent offences, have been removed, by this same Act.

6. There is no evidence that the respondent created, traded or profited from these images.[28]  As was explained in R v Padberg and R v Nankivell, however, the absence of aggravating features such as these is not mitigatory.

   [28]   Cf CLCA, s 63.

7. Whether when sentencing those who create and distribute child exploitation material, or when sentencing those who view it, this Court must do what it can to discourage the sexual exploitation of children.  For that reason, it is well-recognised that limited weight will be given to a defendant’s personal circumstances, including prior good character, and emphasis must be given to deterrence in order to protect the safety of the community of which these children form an integral part.

8. And, whilst it is true that there were some favourable aspects to the respondent’s personal circumstances, he has failed to adequately explain his offending even though he has, somewhat belatedly, embarked on counselling to address it.  As the respondent is now in his early 50’s there must necessarily be considerable doubt about his rehabilitation prospects.

9. The sentence of nine months’ imprisonment is manifestly inadequate, especially having regard to the offending for which the earlier sentence had been imposed in 2014.  Whilst the number of images was not large, that did not detract from the seriousness of the offending, nor from the need for a deterrent sentence to be imposed.

10. Moreover, in the circumstances of this case there was no good reason to suspend, even though the order was for partial suspension. The option of a partially suspended sentence may be a useful sentencing tool where the appropriate sentence is less than 12 months and the sentencing court is precluded from fixing a non-parole period, see s 47(5)(a)(i) of the Sentencing Act 2017 (SA). In some cases, especially where the defendant has not previously been incarcerated, a sentencing judge might well decide that a partially suspended sentence represents a useful means of exposing a defendant to the realities of incarceration whilst also giving that defendant an opportunity to reflect and rehabilitate, often with the benefit of a supervised bond.[29]

    [29]   Which might well be contemplated in cases where home detention is also a potential sentencing option, see Deng v The King (No 2) [2023] SASCA 45, [71]-[74] (Livesey P, Doyle and Bleby JJA) and the cases there discussed. See also Stenecker v Police (2014) 120 SASR 18, 21 [15] (Kourakis CJ), “There is obvious utility in a partially suspended sentence for relatively young offenders who have not previously been imprisoned or subjected to a suspended sentence. Such a sentence usefully fixes both the deterrent and rehabilitative purposes of sentencing.” Of course, in this case, the sentencing judge ruled out home detention and, presumably, wholly suspending the sentence because the offending was too serious.

11. The option of a partially suspended sentence is ruled out in any case where the head sentence is 12 months or more: as will be seen, the appropriate sentence in this case exceeds 12 months.  In any event, the offending was in this case too serious to contemplate suspension. The seriousness of the respondent’s conduct, and the limited scope for leniency, were underscored by the respondent’s prior conviction for the same kind of offending, that he was in his 50’s at the time of sentence and had engaged in offending over a number of years, both during and following his earlier bond.  And, as mentioned, the offending occurred whilst the respondent was subject to the various obligations imposed by the Child Sex Offenders Registration Act 2006 (SA).[30] 

    [30]   See, for example, the discussion of the objects of the legislation in Newson v Police [2015] SASC 105, [3]-[7] (Sulan J); Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11, [67]-[69] (Hinton J); Police v Schmidt; Attorney-General (SA) v Schmidt [2018] SASC 80, [113]-[116] (Hinton J); R v CAB [2020] SASCFC 33, [42]-[50] (Livesey J, with whom Kourakis CJ and Doyle J agreed); and Hopkins v Police [2021] SASC 108, [8]-[25] (Peek J).

12. Whilst the respondent is not to be punished for uncharged offending, these features represented powerful impediments to suspension.

13. This is a proper case in which to grant the Director permission to appeal sentence.  The imminent release of the respondent is outweighed by the need for this Court’s principled intervention.  It is necessary for this Court to maintain appropriate sentencing standards, especially where the sentence is so markedly short of the reasonably available range that it may undermine public confidence in the administration of justice.[31]  The paramount sentencing consideration is the protection of the safety of the community.[32]

    [31]   Everett v The Queen (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ); Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ); R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ); R v Yaroslavceff [2022] SASCA 123; R v Henderson (2023) 104 MVR 68, [34] (Livesey P and David JA); and R v Harris [2023] SASCA 129, [46]-[51].

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

14. The appeal should be allowed, and the sentence set aside. 

    Re-sentencing the respondent

15. On re‑sentence, having regard to the circumstances of the offending and the offender earlier outlined, it is appropriate to commence with a sentence of 20 months’ imprisonment.  After allowing the respondent a reduction of 25 per cent for his plea of guilty, the sentence becomes one of 15 months’ imprisonment. 

16. Having regard to all of the relevant circumstances, including the respondent’s personal circumstances and his preparedness to engage in relevant therapy, a non‑parole period of ten months should be fixed. 

17. That sentence will be backdated to commence from 18 December 2023. 

    Conclusion

18. There will be orders as follows:

    1.The application for permission to appeal sentence is granted.

    2.The appeal is allowed, and the sentence imposed in the District Court is set aside.

    3.The respondent is re-sentenced to a term of imprisonment of 15 months together with a non-parole period of ten months, both backdated to commence from 18 December 2023.

    4.The mobile telephones seized by police will be forfeited pursuant to s 63D of the Criminal Law Consolidation Act 1935 (SA).