R v Hibeljic - [2018] SASCFC 35

Supreme Court of South Australia
(Court of Criminal Appeal)
R v HIBELJIC
[2018] SASCFC 35
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Doyle)
11 May 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - OBSCENE, INDECENT OR OBJECTIONABLE PUBLICATIONS OR REPRESENTATIONS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
The appellant pleaded guilty to one count of blackmail and one count of knowingly distributing an invasive image. The offending arose out of the appellant's conduct in threatening his former girlfriend that he would distribute a video of her with her breasts exposed unless she had sex with him, and in fact distributing it to three people (her friend, new boyfriend and father).
The sentencing judge commenced with a single head sentence for the two offences of five years imprisonment. After reducing the sentence for the appellant’s guilty plea and time spent in custody, the sentencing judge imposed a head sentence of three years three months imprisonment and a non-parole period of 15 months. The sentencing judge declined to suspend the sentence of imprisonment and also declined to order that it be served on home detention.
The appellant appeals on the ground that the sentence imposed was manifestly excessive. The appellant also appeals on the grounds that the sentencing judge erred in refusing to suspend the sentence or order that it be served on home detention.
Held per Doyle J (Peek and Blue JJ agreeing) dismissing the appeal.
1.      The head sentence is not manifestly excessive;
2.      The sentencing judge did not err in declining to suspend the sentence;
3.      The sentencing judge did not err in declining to order that the sentence be served on home detention.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38, referred to.
House v The King (1936) 55 CLR 499; Wessling v Police (2004) 88 SASR 57, applied.
R v Hevko [2018] SASCFC 22, distinguished.
R v Hollitt [2006] SASC 280, discussed.
Hili v The Queen (2010) 242 CLR 520; R v Morse (1979) 23 SASR 98; R v O’Toole [2013] SASCFC 18; R v Skinner (2016) 126 SASR 120; R v Filipponi (2016) 126 SASR 464; R v Dell (2016) 126 SASR 571; R v Hosking (2017) 128 SASR 37; R v Best [2017] SASCFC 55; R v Taheri [2017] SASCFC 115, considered.

R v HIBELJIC
[2018] SASCFC 35
Court of Criminal Appeal: Peek, Blue and Doyle JJ

PEEK J: I would dismiss the appeal. I agree with the reasons of Doyle J.
BLUE J: I agree with Doyle J.
DOYLE J: Following pleas of guilty, the appellant was convicted of one count of blackmail (maximum penalty 15 years imprisonment), and one count of knowingly distributing an invasive image (maximum penalty two years imprisonment or a fine $10,000). The offending arose out of the appellant’s conduct in threatening his former girlfriend (A) that he would distribute a video of her with her breasts exposed unless she had sex with him, and in fact distributing it to three people (A’s friend, new boyfriend and father).
The sentencing judge, utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), commenced with a single head sentence for the two offences of five years imprisonment. Her Honour reduced this by approximately 30 per cent on account of the appellant’s early guilty pleas, and then after making allowance for time spent in custody and on home detention bail, imposed a head sentence of three years three months imprisonment. Her Honour fixed a non-parole period of 15 months.
The sentencing judge declined to suspend this sentence of imprisonment, and also declined to order that it be served on home detention.
In this appeal against sentence, the appellant contends:
1.   The sentence imposed was manifestly excessive.
2.   The sentencing judge erred in declining to suspend the appellant’s sentence of imprisonment.
3.   The sentencing judge erred in declining to order that the appellant serve his sentence of imprisonment on home detention.
Circumstances of the offending
The appellant and A were in a relationship from about August 2016 until the end of January 2017. They were both 18 years of age from the beginning of the relationship.
The relationship was sexual in nature. At some point in 2016, A sent the appellant a sexually explicit video via the social media application Snapchat. Ordinarily, material sent via this medium would automatically ‘disappear’ after being viewed, however, in this case the appellant took an electronic copy of the video before it disappeared. In the video A was shown fondling her naked breasts. The video did not show A’s face, but did show a distinctive tattoo on her ribcage.
The relationship between A and the complainant began to deteriorate in late 2016. In late 2016 or early 2017, A attempted to end the relationship. In this context, the appellant informed A that he had kept a copy of the video, and threatened to send it to her father and brother if she did not continue in the relationship.
A’s father was of Syrian background, and a member of the Druze religious community. The appellant was aware of this context, and realised that A’s father was very strict and would likely react harshly were he to see or become aware of the video.
As events transpired, the appellant did not at that point distribute the video, and the relationship continued. By late January 2017, however, A had become interested in another young man (B), whom she had communicated with online and who was visiting Adelaide from Melbourne. She met up with him, and was seen out with him on the night of 28 January 2017 by a friend of the appellant.
On 29 January 2017, A told the appellant that she wanted to end the relationship with him. The appellant took this news poorly, particularly when he was told by a friend that A had been seen out with B There followed a series of text message exchanges between the appellant and A. They included the following messages sent late in the evening of 30 January 2017:

Appellant:
Victim (A):

It was the last message from the appellant in this exchange that gave rise to the offence of blackmail. Its meaning was clear, particularly when read in the context of the messages that preceded it, and the earlier episode involving the video. It conveyed a clear threat by the appellant that he would send the video to A’s father if she did not have weekly sex with him.
Earlier in the evening of 30 January 2017, the appellant had exchanged a series of text messages with a close female friend of A (C). The messages sent by the appellant to C included the appellant telling C to tell A that he was “gonna do it”, “if she doesn’t unblock me ill do it 10000 %”, “tick tock”, and “sorry to bother ya but no way to get thru to her thick head 11pm shes got till or wallah[1] its done”. The appellant then sent C a photograph or screen shot of the video and a ‘laughing crying’ emoji, adding “nah fuck this she took too long say bye to yr mate x”.
[1] There is reference in the evidence to “wallah” being Arabic for “I swear”.
At this point C responded with messages telling the appellant to “stop man”, “don’t be immature”, “you two ended, just let it go” and “don’t be that guy”.
The appellant responded with a string of messages that included “I am that guy”, “she knew I was that guy” and “well anyway tell her have fun with whats coming coz its done. She told me wallah she’d kill herself so you might wanna chat with her ya know x”. The appellant then sent C a photograph of a USB or memory stick, saying “I’ll send photo of mailbox when I’m at her dads bye now x”.
C responded by telling the appellant that he was “actual fucked”, that he deserved what would come his way if he sent it, and telling him to “be graceful and a man and just leave” and not “ruin her life”.
On 31 January 2017, the appellant contacted A’s new boyfriend (B) over Facebook messenger. Over the next few days they exchanged various messages in a series of heated conversations about A.
On 2 February 2017, the appellant sent B a copy of the video via Facebook messenger. The appellant also sent B an image of a house followed by messages stating “her fathers house” and “left a lil something x”. B took these messages to mean that the appellant was going to leave a copy of the video at A’s father’s house. He sent two messages to the appellant telling him to “grow the fuck up”. B then called the appellant and tried to convince him, and indeed pleaded with him, not to send the video to A’s father. He told the appellant that A’s father was “crazy”, would “go nuts” if he saw the video of A, and would “take it out on her”. The appellant said that he did not care anymore and that he was going to do it anyway.
At some point in early February 2017, the appellant placed (or arranged for somebody to place) a USB containing the video in the letterbox of A’s father. It was left with a note threatening to send a video of A to the Syrian community. With the help of A’s brother, A’s father watched the video and realised that the images were of A. Both A’s father and brother reacted angrily to what they saw.
The three distributions the subject of the count of distributing an invasive image related to the provision of the video to A’s new boyfriend (B) and father, and the provision of a still image from the video to A’s friend (C). It was later discovered that the appellant also sent a copy of the video to A’s brother via Instagram, but as the brother did not use his account during the relevant period he did not see this copy of the video, and this further distribution is not the subject of a charge.
On 27 February 2017, A’s father confronted her about the video, and subjected her to significant physical harm in what can only be described as a frightening and vicious physical attack. There is reference in the evidence to A’s father being dealt with separately by the criminal courts for his attack upon his daughter.
The appellant was interviewed by police on 1 March 2017. He admitted making the threats to A, but denied distributing the video to anyone. He was arrested and remanded in custody from 1 March 2017 until 16 March 2017, when he was released on home detention bail to reside at his family home. He remained on home detention bail without incident until he was sentenced on 25 January 2018.
As described in A’s victim impact statement, and as summarised by the sentencing judge, the appellant’s offending had nothing short of a devastating impact upon A’s life. Her relationship with her father, strained at the time of the offending, has now completely broken down. Her relationship with other family members has also been damaged as a result of the offending. A described the trauma of having to leave Adelaide as a 19 year old girl with little family support and limited financial means after the breakdown of her relationship with her family. She was forced to abandon her tertiary education. She continues to regularly experience panic attacks. A described her feelings of hopelessness in regards to her future. The appellant’s offending has wreaked havoc on every aspect of her life.
The appellant’s personal circumstances
The appellant was born on 23 December 1997. He was 18 years of age at the time his relationship with A commenced, 19 years of age at the time of his offending and 20 years of age at the time of sentencing. He has no prior convictions.
The appellant was born in Germany. His parents are of Serbian heritage, having fled to Germany from Bosnia. His family migrated to Australia when he was three months of age. The appellant has a younger brother, and had a generally positive upbringing. He experienced some bullying at school in relation to his weight. At the time of his offending, the appellant was experiencing some distress as a result of marital difficulties between his parents. It appears those difficulties have resolved, and in any event, his parents both remain supportive of him.
The appellant was an average student, and matriculated from high school. He also completed a foundations course at the University of South Australia with a view to continuing to study a business or economics degree.
While still at school, the appellant commenced part-time work assisting his mother as a cleaner. He subsequently worked in a family business managing a café, and became the operations manager of his family’s cleaning business. It appears that the appellant was an industrious young man, and that his parents relied heavily upon him.
The sentencing judge was provided with a testimonial from the appellant’s parents, describing him as competent and hard working in the family businesses. They considered his offending conduct to be out of character. They said that the appellant was extremely apologetic and that he had matured since the offending. To that end, the sentencing judge was provided with a copy of a letter from the appellant to A in which he apologised to her, and acknowledged the wrongfulness and seriousness of his conduct, and the impact it had had upon A.
The sentencing judge also received four character references that attested to the appellant’s good standing amongst his family, friends and community. The authors of those references considered that the appellant’s offending was out of character, noted his remorse and expressed confidence that he would not reoffend.
The appellant relied upon a report from a psychologist, Mr Fugler, dated 14 December 2017. Having set out the appellant’s personal history, Mr Fugler said that the appellant had acknowledged having difficulty controlling his anger in the face of perceived rejection and conflict, and that he understood his conflict management skills were sometimes found wanting which in turn led to internal distress and tension that adversely influenced his decision making and impulse control. Mr Fugler considered that the appellant’s conduct was the result of a combination of factors that included thwarted affection, perceived rejection, jealousy, a desire for retribution and stress in relation to his parents’ marital difficulties. Mr Fugler’s opinion was that the appellant’s offending conduct was not indicative of pathological jealousy, but rather an overreaction to perceived rejection. Mr Fugler recommended that the appellant be referred to a treating clinical psychologist for assistance, particularly in the area of anger management. He also considered that the appellant did not have a great degree of emotional resilience, and that he may have difficulty adjusting to serving a prison sentence.
The sentencing remarks
The sentencing judge summarised the circumstances of the offending and the appellant’s personal circumstances in terms similar to the above.
Turning to the sentence to be imposed, the sentencing judge described the appellant’s offending as undoubtedly serious. Her Honour described the text message forming the factual basis of the first count as nothing short of abhorrent. Her Honour said that it presented A with the choice of unwillingly continuing in a sexual relationship with the appellant on his terms, or having the video released to her father knowing that her relationship with her father was already strained and knowing that her father seeing the video would cause the utmost damage to that relationship. The appellant then carried through with his threat. The sentencing judge explained that while the appellant might not have appreciated the extent of the consequences of his conduct, or the physical harm that would befall A, he knew A’s relationship with her father was tenuous and that to send the video to her father would cause her incalculable distress. Indeed, the sentencing judge observed that that was why the appellant chose to send it to her father; that is, to cause such distress to A for having the temerity and courage to defy the appellant’s threatening conduct.
As the sentencing judge also noted, the appellant then distributed the invasive image on three separate occasions over a period of three days to not only A’s father, but also her friend and new boyfriend. The appellant persisted in his conduct in sending the video to A’s father notwithstanding that A’s friend and new boyfriend tried to talk him out of such conduct. He ignored their pleas.
The video had been sent to the appellant in the context of a consensual relationship. As such, the sentencing judge correctly described the appellant’s offending as involving a gross betrayal of trust. The sentencing judge elaborated:
Your offending was also not committed in a short fit of pique, it was considered, it was deliberate and it was calculated to cause much damage to your victim, and that it did. There have been grave consequences for her. You have forever changed the trajectory of her life. Her relationship with her father and her family is irreparably damaged and her tertiary education disrupted.
The sentencing judge decided to impose a single sentence under s 18A of the Sentencing Act. This was appropriate given the connection between the two offences. Her Honour said that but for the appellant’s pleas of guilty, she would have imposed a sentence of five years imprisonment. Her Honour reduced that by 30 per cent for the pleas of guilty to three years six months imprisonment. Her Honour further reduced this sentence by 16 days for the time the appellant spent in custody and two months 14 days for the time spent on home detention bail, resulting in a head sentence of three years three months imprisonment.
In fixing a non-parole period, the sentencing judge had regard to the appellant’s youth and his contrition, as shown by his apology, timely pleas of guilty and cooperation with the authorities in consenting to an intervention order without argument. Her Honour also had regard to the fact that the appellant had no prior convictions, was previously of good character, and was fully employed and a hard working employee upon whom his parents relied. Her Honour added that he clearly had good prospects of rehabilitation in light of his compliance with his home detention bail and Mr Fugler’s opinion, which her Honour accepted, that his offending was not indicative of pathological jealousy but rather an overreaction to rejection and was amenable to treatment. Having regard to all of these matters, the sentencing judge fixed a relatively low non-parole period of 15 months.
Turning to the question of suspension, the sentencing judge declined to suspend the appellant’s sentence of imprisonment. Her Honour said:
I turn to the question of suspension. There is much to be said in your favour. You are still a very young man and the authorities have made clear youth is a mitigatory factor particularly when a young man such as yourself has no prior convictions, is fully employed, has good prospects of rehabilitation and has demonstrated remorse for his offending conduct. However, having regard to the serious, calculated and deliberate nature of this offending, the grave consequences for the victim and the need for principles of general deterrence to be reflected in my sentence, in particular the need for any sentence of the court to deter other young persons from using images sent over social media to elicit sexual favours and to deter other young persons from distributing images in such a harmful and abhorrent manner, I cannot find there is good reason to suspend the sentence and I decline to do so.

Finally, the sentencing judge also rejected the appellant’s submission that she should order that his sentence be served on home detention. Her Honour said:
Your counsel has argued that I order you to serve your sentence on home detention. You are clearly a suitable person for home detention and your proposed residence is suitable. There is no reason to consider you unlikely to comply with a home detention order. However, I do not consider it appropriate to order you serve your sentence on home detention because of the seriousness of this offending and the need for principles of general deterrence and punishment to prevail.
The appeal
I have earlier set out the three grounds of appeal relied upon by the appellant.
Each of these grounds of appeal complains of an outcome error in an exercise of the sentencing judge’s discretion, and is hence subject to the principles of appellate restraint in House v The King.[2] It is not enough to establish error that I, or some other sentencing judge, might have reached a different conclusion. Rather it must be established that the sentence imposed (including the refusals to suspend the sentence of imprisonment or order that it be served on home detention) was unreasonable or plainly unjust.
[2] House v The King (1936) 55 CLR 499 at 504-505.
Manifest excess
The appellant contends that both the head sentence and non-parole period imposed by the sentencing judge were manifestly excessive. While accepting that the offending was serious, and had a damaging impact upon A, the appellant’s submissions focussed upon a challenge to the sentencing judge’s description of the offending as calculated, deliberate and considered, and a contention that the sentence imposed did not adequately reflect the various factors favourable to the appellant in his personal circumstances.
In considering a submission of manifest excess, it is appropriate to bear in mind the approach mandated by the High Court in Hili v The Queen.[3]This requires a consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[4] In the context of sentencing for more than one offence, regard must also be had to the need to ensure proportionality in the overall sentence. But ultimately there is a limit to the amount of analysis that may be brought to bear. Often manifest excess will be a conclusion that does not admit of lengthy exposition.[5]
[3]    Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
[4]    R v Morse (1979) 23 SASR 98.
[5]    Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
In considering the seriousness of the two offences in this case, it is relevant to commence by noting the maximum penalties of 15 years imprisonment for the offence of blackmail, and two years imprisonment or a $10,000 fine for knowing distribution of an invasive image. These significant maximum penalties reflect the seriousness with which the offences in question are to be regarded.
It is significant that both offences involved a sexually explicit video of A. While the video was provided to the appellant by A, this occurred in the context of the consensual relationship that they were in at the time. The images in the video were obviously of an intensely private nature, and indeed, given the medium over which it was sent to the appellant, A might reasonably have assumed that the video would only have a transient existence in the appellant’s hands. To use the video in the manner he did in the course of his offending involved a gross betrayal of trust by the appellant.
In relation to the count of blackmail, this is a particularly serious instance of this type of offending. The relevant text message involved a clear threat that the appellant would send A’s father a copy of the video if she did not comply with his demand that she continue in a sexual relationship with him (and do so on his terms).
The making of this demand and accompanying threat was abhorrent at a number of levels. The demand was not a mere plea to remain in a consensual relationship with A. To the contrary, it was an aggressively and forcefully expressed demand that she permit him to “fuck [her] at least once a weekend”. To the extent that it envisaged any “relationship” between the appellant and A, it was to be on his terms; on the basis of “the ground rules” that he set out.
Further, the accompanying threat to distribute the video was not only likely to have been a terrifying prospect for A but also carried an air of reality in terms of the appellant’s apparent preparedness to follow through on his threats.
As to the latter, and discounting the benefit of hindsight and hence knowledge that the appellant did in fact follow through on that threat, the context in which it was made meant that it was unlikely at the time to have been dismissed as mere words, or an idle threat. The appellant had made a similar threat or threats a month earlier, and while the appellant is not to be sentenced for this earlier conduct, it forms relevant background, and no doubt made it plain to A that the appellant had given some thought to giving the video to A’s father. Even confining attention to the period immediately surrounding the threat made on 30 January 2017, the threat did not occur in isolation. It occurred in a context where the appellant made other references to his intention to carry out his threat, saying things such as that he was “gonna fucking do exactly what I said” in messages sent both to A directly, and to her friend (C) (with a request and expectation that they would be passed on to A).
As to the terrifying nature of the threatening conduct, the nature of the images was such that any distribution of them would at the very least involve a gross invasion of A’s privacy and be a source of immense embarrassment for her. Even putting A’s particular family circumstances to one side, distribution of the video was inherently capable of, and likely to, cause significant and ongoing hurt, distress and embarrassment.
But A’s family circumstances cannot be put to one side. I shall return to this matter in the context of my separate consideration of the seriousness of the distribution of the video below, but even in the context of the offence of blackmail, it is relevant that, as the appellant well knew, the threat of distributing the video was likely to be more terrifying for A than it would be for most other victims. The appellant knew of A’s tenuous relationship with her father, and of his strict views. While he would not have needed reminder of these matters at the time of his offending, as it happens both A’s friend and new boyfriend provided the appellant with explicit reminders and warnings. The appellant may not have anticipated a reaction from A’s father quite as extreme as that which in fact occurred, but he was certainly aware of the risk, if not likelihood, of a serious and significant reaction on the part of A’s father. It is clear that his awareness of this likely significance of the threat, and hence its likely impact on A, contributed to his decision to deploy it.
While comparison with sentences in other cases is of limited utility, and potentially unhelpful, given the myriad of different factors relevant in each particular case, I nevertheless mention the decision of this Court in R v Hollitt.[6] It is instructive in a very general way as to the seriousness with which blackmail involving threats of dissemination of material of a sexual nature are, and should be, treated by the courts. In respect of offending, and personal circumstances, that bore some very general resemblance to those in the case at bar (and despite there being no associated distribution offence), this Court imposed a sentence of five years imprisonment with a two year non-parole period, and declined to suspend the sentence of imprisonment.
[6] R v Hollitt [2006] SASC 280.
In relation to the offence of knowingly distributing an invasive image, the offending was again very serious. It is true, as the appellant points out, that the images were not of the most explicit or invasive kind possible, in that the images did not, for example, show A engaged in sexual activity with another person and did not include vision of her face. It is also true that distribution was confined to three people, and did not, for example, involve distribution to a large number of people (or, indeed, the public at large) as might occur with various forms of distribution over social media or the internet.
I accept that ordinarily the more explicit or invasive the images, and the greater the distribution or circulation of the images, the greater the seriousness of the offending. However, these are not the only considerations. Consideration must also be given to the significance of the images to the particular victim, and the identity (and relationship to the victim) of the persons to whom distribution occurs. In some cases, a targeted distribution to a limited audience may be more insidious and harmful than a distribution to a wider audience. The present is such a case. A would no doubt have been horrified and embarrassed by any public dissemination of the video. However, as the video did not show her face and was perhaps unremarkable in its content given the range of sexually explicit material readily available on the internet, it would have been unlikely to come to the attention of her family or indeed have attracted much attention more generally had it been distributed in a wide-scale but indiscriminate way.
But that is not what occurred. Rather, the distribution in this case was a targeted distribution to A’s father. It was intended, and inherently likely, that he would identify A, and that he would react strongly to its content. In other words, while the audience was limited in number, and while the content was not of the most sexually explicit kind, the dissemination was targeted to the very audience most likely to cause harm to A, and in respect of whom A’s privacy in relation to matters of a sexual nature was of the utmost concern. In the circumstances, while the distribution offence was not at the most serious end of the scale of offending of this type, it was nevertheless very serious and warranted a sentence of imprisonment in and of itself.
Despite all of the above, or perhaps more accurately by way of a handbrake on the significance of the above, the appellant contends that the sentencing judge nevertheless went too far in characterising the offending as calculated, deliberate and considered.
In this respect, the appellant contends that the sentencing judge did not have adequate regard to his emotional state at the time of the offending, and the matters adverted to by Mr Fugler in his report. In particular, the appellant contends that regard should be had to the fact that the offending occurred in a window of time when he had just lost a relationship that was very significant to him, and was having difficulty coping with his perceived rejection. He was in a very emotional state and believed his life was falling apart. In this context, it was contended that his conduct should be seen as desperate acts by a young man in a state of uncontrolled emotional turmoil, and without any realistic prospect of being successful in rescuing the relationship, rather than conduct of a calculated, deliberate and considered manner.
I accept that the appellant’s emotional state at the time of his offending, exacerbated no doubt by his inability to cope with rejection and his general immaturity, affected his judgment and decision making. I also accept that this is a relevant consideration. But, in my view, the relevance of this matter is limited, and does not undermine the sentencing judge’s conclusion that the offending was calculated, deliberate and considered. To the contrary, I consider this to be a fair and appropriate description of his conduct.
As the sentencing judge said, the offending was not committed in a short fit of pique. Rather, his blackmailing and distribution of the video occurred against the background of his earlier threat in relation to the video, and took place over a period of days. The communication of the threat constituting the blackmail did not occur spontaneously or out of the blue. It occurred as the culmination of a series of communications headed in that direction. His offending occurred in a context where the appellant had several opportunities to reflect upon how he was reacting and behaving, and to desist from making the threat he made and from following through on it. He took none of these opportunities, despite warnings to him by A’s friend and new boyfriend of the potential consequences for A of his threatened conduct, and their pleading with him not to inflict these consequences upon A. Further, in the immediate aftermath of his conduct he did not show any signs of regret or contrition. Rather, he said to A’s friend that he did not regret what he had done, and that A deserved his treatment of her. While his emotional state provides some explanation for his conduct, it provides little by way of excuse for it.
As the appellant fairly submits, there were a number of matters in his personal circumstances that were favourable to him. He was very young at the time of his offending. Not only was this in part the explanation for the immaturity reflected in his offending, but in combination with various other factors it also suggested that had good prospects of rehabilitation. Relevant matters in this respect included the fact that he had no previous criminal record, was a hard working young man, and was generally of a good character. According to Mr Fugler, the appellant did not have any pathological jealousy, and the psychological or emotional factors that contributed to his offending were capable of treatment and resolution. During the sentencing process, he also demonstrated some insight into the significance of his offending, and expressed remorse and contrition for his actions.
While all of these factors were very relevant, there can be no suggestion that they were overlooked by the sentencing judge. Her Honour expressly mentioned them, and made it plain that they weighed heavily, in particular in her consideration of the issues of the non-parole period, suspension and home detention.
Bearing in mind all of the above, I am not satisfied that the sentencing judge’s starting point of five years imprisonment for the combination of the two offences was manifestly excessive. While a heavy sentence, it was within the range of head sentences that might reasonably have been imposed. After appropriate reductions made for the appellant’s pleas of guilty, and time spent in custody and on home detention bail, the head sentence ultimately imposed (three years three months imprisonment) was proportionate to the overall circumstances of the appellant and his offending.
To the extent that independent complaint is made that the non-parole period of 15 months was manifestly excessive, that complaint is without merit. While it was appropriate that there be some leniency in the fixing of a non-parole period, that is precisely what occurred.
Declining to suspend
In determining whether to suspend a sentence of imprisonment under s 38 of the Sentencing Act, there is but one question; namely, whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentence.[7] Further, while regard must be had to all the relevant sentencing considerations, it is also true that it is appropriate to have particular regard to the factors personal to the appellant at this stage of the sentencing exercise. These factors may thus weigh more heavily at this stage of the sentencing exercise.
[7] Wessling v Police (2004) 88 SASR 57 at [26]-[27], as applied, for example, in R v O’Toole [2013] SASCFC 18 at [50] and R v Skinner (2016) 126 SASR 120 at [81].
I have already set out the personal circumstances of the appellant in some detail. I have explained in particular the significance of his young age, his absence of any previous convictions and general good character, his contrition, and his good prospects of rehabilitation. They are all very relevant matters, particularly at this stage of the sentencing exercise.
However, the sentencing judge plainly recognised the significance of these matters, both generally and in the specific context of the decision whether to suspend the appellant’s sentence of imprisonment. This is apparent from a reading of her Honour’s sentencing remarks generally, as well as the passage (set out earlier in these reasons) in which her Honour addressed the question of suspension.
At the same time, the sentencing judge was also entitled to take into account the nature of the offending, and the need to ensure that the sentence ultimately imposed adequately reflected the need for general deterrence. The sentencing judge was right to emphasise the need to ensure that people are deterred from using invasive images to elicit participation in sexual activity or from otherwise distributing them.
I am not satisfied that there was any error in the sentencing judge’s approach or decision on this issue. It was reasonably open to her Honour to decline to suspend the appellant’s sentence of imprisonment.
Declining to order home detention
The issue of whether to order that the appellant serve his sentence on home detention was a finely balanced one in the circumstances of this case. But I am not satisfied that there was any error in her Honour’s approach or decision on this issue.
The proper approach, and considerations relevant, to the issue of whether to order that a sentence of imprisonment be served on home detention have now been considered in several decisions of this Court.[8] It is not necessary to repeat the matters of general principle addressed in those decisions.
[8] R v Filipponi (2016) 126 SASR 464 at [23]-[28]; R v Dell (2016) 126 SASR 571 at [40]-[60]; R v Hosking (2017) 128 SASR 37 at [6]-[9]; R v Best [2017] SASCFC 55 at [44]-[53], R v Taheri [2017] SASCFC 115 at [24]; R v Hevko [2018] SASCFC 22.
The sentencing judge’s reasons for declining to order home detention are set out earlier in these reasons. As to the first stage of the inquiry, the sentencing judge was satisfied that the appellant was a suitable person for home detention, that his proposed residence was suitable, and that there was no reason to consider it unlikely that he comply with a home detention order. However, it was at the second stage of the inquiry that the sentencing judge was not persuaded that it was appropriate to make the order sought. In this respect, her Honour said that she did not consider it appropriate to order that the appellant serve his sentence on home detention “because of the seriousness of this offending and the need for principles of general deterrence and punishment to prevail.”
The appellant did not go so far as to submit that the sentencing judge overlooked the circumstances personal to the appellant that ought to have weighed in favour of an order of home detention. Such a submission would have been unmeritorious for it is trite that a judge’s sentencing remarks must be read as a whole, and not treated like reasons for judgment. They need not be exhaustive at every stage. It can be safely assumed that despite her Honour only making express reference to the seriousness of the offending and the need for general deterrence and punishment, her Honour nevertheless took into account all of the usual sentencing considerations at this stage of the sentencing exercise. Her Honour had earlier set out all of those considerations in some detail, and had indeed summarised the key matters in the preceding paragraph of her remarks when addressing the issue of whether to suspend the appellant’s sentence of imprisonment.

Rather, the appellant’s submission was a more nuanced submission that the brevity of her Honour’s (express) treatment of the issue of home detention was indicative of a failure to appreciate the full significance of the matters personal to the appellant at this stage of the sentencing exercise. Support for this submission was sought to be drawn from the recent decision of this Court in R v Hevko.[9] This decision was said to be authority for the proposition that in circumstances where the issue of whether to order home detention is finely balanced, then something more than a sentence of reasoning would ordinarily be required in order to demonstrate that the sentencing judge had properly considered the issue of home detention, and was properly satisfied that it was appropriate to decline to make an order.
[9] R v Hevko [2018] SASCFC 22.
It is true that R v Hevko emphasises the need to ensure that proper attention is paid to the particular nature of the discretion to order that a sentence of imprisonment be served on home detention. While the range of considerations relevant to that discretion reflects the same matters relevant to the earlier exercises of discretion in arriving at an appropriate head sentence, in fixing a non-parole period and in determining whether to suspend the sentence of imprisonment, nevertheless the issues at each stage are different, and require a separate and distinct weighing and synthesis of those factors.
At the same time, where the circumstances of the offending and of the offender have been essayed in the sentencing remarks, it will not generally be necessary to repeat these matters at each stage of the sentencing process. While the issues differ at each stage, there is often little different that can usefully be said at each stage. Having at some point in the sentencing remarks set out all relevant considerations, the conclusion at each stage (including in relation to home detention) often admits of little by way of analysis, let alone by way of detailed exposition of that analysis. While this Court needs to ensure that adequate regard has been had to the differing discretions at each stage of the sentencing exercise, it at the same time needs to be wary of mandating an approach that would require that sentencing remarks include a detailed or exhaustive explication of every step in the process. To do so would result in sentencing remarks becoming unnecessarily, and indeed undesirably and artificially, long and would risk the resort to formulaic repetition in an attempt to articulate what is, after all, meant to be the product of an instinctive synthesis that is often not readily susceptible of detailed articulation.
It is also significant when considering R v Hevko that the Court held that the sentencing judge in that case had failed in his sentencing remarks to identify a salient feature of the offending, namely that it may have been an isolated incident and the defendant’s first incursion into heroin trading.[10] It was in this context that it was insufficient (and involved a failure to address the home detention discretion against a critical factual feature of the offence[11]) for the sentencing judge to rely upon a reference to the importance of deterrence in relation to “this category of offending generally” when declining to order home detention.
[10] R v Hevko [2018] SASCFC 22 at [5], [9], [60]-[61].
[11] R v Hevko [2018] SASCFC 22 at [10].
There was no equivalent failure in this case to identify the relevant features of the offending. To the contrary, the sentencing judge did so in detail and with clarity.
The Court in R v Hevko also criticised the sentencing judge’s remarks as failing to make it plain that his Honour had appreciated the differences between the issues of suspension and home detention. Indeed, the Court inferred from the similarities in the expression of the judge’s reasoning in respect of each that he had, in effect, applied the same test to both issues.[12]
[12] R v Hevko [2018] SASCFC 22 at [67].
While the remarks of the sentencing judge in this case in relation to the issues of suspension and home detention were brief, there is nothing in those remarks that suggests any confusion between, or elision of, the differing issues relevant to suspension and home detention. Both options were the subject of different paragraphs and distinct (albeit succinct and similar) reasons. There is no basis to infer such confusion or elision.
I accept that the issue of whether to order home detention in the present case was finely balanced. The combination of the length of the sentence, the fact that the safety of the public did not loom particularly large, and the favourable personal circumstances that I have outlined, may well have persuaded some sentencing judges to order home detention. However, I am not satisfied that it was unreasonable for the sentencing judge in this case to decline to make such an order. As her Honour explained, the nature of the offending, and the consequential need for general deterrence, punishment and denunciation were significant in this case. While not overlooking the significant measure of general deterrence, punishment and denunciation that a sentence of home detention imprisonment can achieve (particularly when it comes subject to strict conditions), the reality is that it remains a materially lesser form of punishment than a custodial sentence. In my view, it was reasonable for the sentencing judge to take the view that an order for home detention would not adequately achieve these sentencing objectives in the circumstances of this case.
The appellant has not demonstrated error, in the sense required by House v The King,[13] in the sentencing judge’s exercise of her discretion to decline to make an order that the appellant serve his sentence of imprisonment on home detention.
[13] House v The King (1936) 55 CLR 499 at 504-505.
Conclusion
For the reasons set out I would dismiss the appeal.