R v KIRKBRIDE - [2025] SASCA 5

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v KIRKBRIDE
[2025] SASCA 5
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice Stein)
30 January 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
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 - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
During a search on the respondent's laptop computer, the police located 13 items of child exploitation material. The respondent subsequently pleaded guilty to one count of aggravated possession of child exploitation material and one count of basic possession of child exploitation material.
The sentencing Judge imposed a single sentence of two years imprisonment, reduced on account of the respondent’s guilty pleas to one year, 10 months and 25 days imprisonment. A non-parole period of one year was fixed. The sentencing Judge suspended the sentence.
The Director of Public Prosecutions seeks permission to appeal on the basis the starting point of the sentence and order for suspension was manifestly inadequate.
Held, per the Court, refusing permission to appeal:
1. The sentence imposed was not manifestly inadequate.
2. The decision to suspend the sentence was open to the sentencing Judge.
Criminal Law Consolidation Act 1935 (SA) s 63A(1); Sentencing Act 2017 (SA) ss 26, 96(1); Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA); Statutes Amendment (Child Sex Offences) Act 2022 (SA), referred to.
Elias v The Queen (2013) 248 CLR 483; Everett v The Queen (1994) 181 CLR 295; Hackett v The Queen [2021] SASCA 32 ; House v The King (1936) 55 CLR 499; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Markarian v The Queen (2005) 228 CLR 357; R v Ametovic [2024] SASCA 153; R v Bradley [2024] SASCA 56; R v Brandon [2024] SASCA 9; R v Butler (a pseudonym) (2022) 303 A Crim R 296; R v Buttigieg (2020) 352 FLR 170; R v Dyett [2023] SASCA 41; R v Kelly [2023] SASCA 22; R v Lian [2023] SASCA 122; R v McIntyre (2020) 138 SASR 17; R v Nankivell [2022] SASCA 87; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Padberg (2010) 107 SASR 386; R v Pham (2015) 256 CLR 550; R v Turvey (2017) 127 SASR 425; R v Urch [2024] SASCA 28; R v Yaroslavceff [2022] SASCA 123; Wong v The Queen (2001) 207 CLR 584, considered.

R v KIRKBRIDE
[2025] SASCA 5
Court of Appeal – Criminal: Lovell and Bleby JJA and Stein AJA

THE COURT: On 1 August 2020, having received intelligence that the respondent had accessed a Russian website known to facilitate sharing of child exploitation material, the police raided and searched his premises. The police located a laptop computer. Subsequent examination revealed 12 items of aggravated child exploitation material and one item of non-aggravated child exploitation material on the laptop.
The respondent pleaded guilty to one count of aggravated possession of child exploitation material (Count 1) and one count of basic possession of child exploitation material (Count 2).[1] The maximum penalty for Count 1 is seven years imprisonment, and for Count 2, five years imprisonment.[2] The respondent was entitled to a discount of up to five per cent on account of his guilty pleas.
[1] Contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] On 1 October 2022, under the Statutes Amendment (Child Sex Offences) Act 2022 (SA), the maximum penalty under s 63A(1) of the Criminal Law Consolidation Act 1935 (SA) was increased to 12 years imprisonment. The classifications between basic and aggravated offending, as well as between first and subsequent offences, have also been removed.
The sentencing Judge, utilising s 26 of the Sentencing Act 2017 (SA), imposed a single sentence of two years imprisonment, reduced on account of the respondent’s guilty pleas to one year, 10 months and 25 days imprisonment. A non-parole period of one year was fixed.
The sentencing Judge ordered that the sentence be suspended upon the respondent entering into a supervised bond in the sum of $1,000 for a period of two years, with the condition of participating in sexual offender treatment programs as directed.
The Director of Public Prosecutions (“the applicant”) seeks permission to appeal on the basis the sentence, being the starting point and order for suspension, was manifestly inadequate.
For the reasons that follow, we would refuse permission to appeal.
Factual basis
On 1 August 2020, police attended the respondent’s residence and seized several of the respondent’s devices.
On a laptop belonging to the respondent, child exploitation video files were located; 13 files had been downloaded, which are the files subject to the charges. The files were assessed against the Oliver Scale.[3]
[3] Such material is now categorised pursuant to the Australian Child Abuse Categorisation Schema.
The 12 items of aggravated child exploitation material (comprising Count 1) consisted of nine aggravated category 4 videos located in the downloads folder, one aggravated category 4 video located in the recycle bin folder, and two aggravated category 5 videos located in the downloads folder. The single item of basic child exploitation material (comprising Count 2) consisted of a non-aggravated category 2 video in the downloads folder. The material subject to the charges was time stamped as being downloaded on 13 June 2020.
Category 2 material includes non-penetrative sexual activity between children. Category 4 material includes penetrative sexual activity between children, or between children and adults. Category 5 material includes bestiality and sadistic humiliating treatment of children.
A review of the internet history on the laptop also identified search terms consistent with child exploitation material located on the device for the period of 13 January 2013 to 25 July 2020.
The respondent was arrested at the time police attended his house. He subsequently participated in a record of interview. The respondent made admissions to accessing the website, accessing and downloading child exploitation material, communicating with third parties for the purpose of obtaining child exploitation material, and engaging in a conversation with another person on the website about having sexually abused his own children. The respondent subsequently denied ever acting upon such thoughts, stating it was the easiest way to get the attention from other users.
The respondent maintained that he did not have a sexual interest in children, denying that he had actively searched for the material and had rather incidentally acquired the child exploitation material while viewing other adult material online. The applicant did not accept this factual basis, and the matter proceeded to a disputed facts hearing before the sentencing Judge in which the respondent gave evidence.
The sentencing Judge rejected the respondent’s evidence as to how he acquired the child exploitation material, finding beyond reasonable doubt that he had actively sought the child exploitation material. Given the nature of the material, the admission of viewing the material and the conversations that the respondent had with others online, the sentencing Judge rejected the respondent’s evidence that he did not have a sexual interest in children. The sentencing Judge accepted the respondent had limited insight into his offending which was relevant to his prospects of rehabilitation.
Personal circumstances of the respondent
At the time of sentence, the respondent was 38 years of age. He had no relevant prior conviction.
The respondent was born in Adelaide and has remained living in Adelaide. His parents remain married, but he has ceased contact with them and his sister due to a conflict involving his former partner. The respondent attended school until part way through year 10. He was diagnosed with attention deficit hyperactivity (“ADHD”). When he ceased taking medication for his ADHD, his academic performance declined.
After dropping out of year 10, the respondent took up work with a mechanic and worked in that field for approximately seven years. He completed an automotive apprenticeship and maintained consistent employment until his arrest.
The respondent has been married twice. From his first marriage, he had two children and shared custody of them until his arrest. He remarried and his second wife had two children from a previous relationship whom he helped raise. The relationship with his second wife was turbulent, which generated conflict with his family. This marriage also ended.
A psychological report by Ms Heinrich, a clinical psychologist, was tendered before the sentencing Judge.
The respondent informed Ms Heinrich that during his incarceration, he was assaulted by another prisoner. The respondent developed post-traumatic stress disorder due to this incident and his psychiatric symptoms have prevented him from returning to employment. Following his trauma in custody, he was prescribed sertraline and has been under the care of a psychologist.
The respondent viewed pornography as a teenager which continued into his adult years. The respondent stated he has a substantially reduced sex drive and is no longer viewing pornography, nor desires to do so.
Testing conducted by Ms Heinrich indicated the respondent’s experience of depression, anxiety and stress exceeds what is considered normal in the adult population.
The respondent reported to Ms Heinrich that he pleaded guilty on the basis of the material being on his device but denied actively accessing them, and rather had inadvertently come across the material. Ms Heinrich stated that if it was determined by the Court that he actively sought the child exploitation material, then more assertive treatment would be warranted. Ms Heinrich noted there was insufficient information to enable her to determine whether the respondent had a sexual interest in children. The respondent denied to Ms Heinrich having any sexual interest in children.
The findings of the sentencing Judge were inconsistent with some of the assumptions made by Ms Heinrich.
Sentencing considerations
The sentencing Judge noted that the offence of possessing child exploitation material is not a victimless crime. The production of such material involves degradation, humiliation, and abuse of children. The sentencing Judge found it was necessary to personally deter the respondent from further offending and to reflect the seriousness of the offending.
The sentencing Judge stated the offending undermines the fabric of society in the sense it contributes to psychological and physical harm to the children involved. The exploitation and abuse of children, and the sexual gratification of adults is not to be tolerated by the community. The paramount consideration is the protection of the community.
The sentencing Judge noted that the respondent had spent 21 days in custody before being granted bail. His time in custody had been a salutary experience.
The sentencing Judge had regard to matters favourable to the respondent, including his lack of criminal history, positive work history, the limited volume of materials in the respondent’s possession, and the likelihood of the respondent returning to a productive role in the community.
In relation to both counts on the Information, the sentencing Judge imposed a single penalty, pursuant to s 26 of the Sentencing Act 2017 (SA), of two years imprisonment. The sentencing Judge allowed the five per cent discount, making the sentence one year, 10 months and 25 days. He fixed a non-parole period of one year.
Allowing for the 21 days for the time in custody, the final sentence was one year, 10 months and four days imprisonment, with a non-parole period of 11 months and nine days.
The sentencing Judge recognised that this type of offending usually attracted an immediate sentence of imprisonment reflecting the seriousness of such offending. However, the sentencing Judge found there was good reason to suspend the sentence.
The sentencing Judge suspended the sentence of imprisonment upon the respondent entering into a bond in the sum of $1,000 for a two-year period. It was a condition of the bond that the respondent undergo psychological treatment as directed, including partaking in sexual offender treatment programs. The sentencing Judge noted that he was aware that such treatment which the respondent requires is not available within the prison system for what are described as non-contact sexual offenders.
Grounds of appeal
The applicant seeks permission to appeal on a single ground, namely that the sentence imposed was manifestly inadequate.
At the appeal hearing, the applicant contended that the ground related to both the length of the sentence imposed and the fact that the sentence was suspended. That is, the applicant contended that it was not open to the sentencing Judge to suspend the sentence.
Applicant’s submissions
The applicant accepted that no specific error could be established. The applicant alleged an outcome error had occurred as the starting point and suspension of the sentence failed to maintain adequate standards of punishment for this type of offending.
The applicant submitted the offending is that of the most serious kind. From a qualitative assessment, the content of the material was extremely depraved, depicting sexual abuse of multiple children, including penetrative acts between adults and children, and acts of bestiality and humiliation. The children depicted were under 14 years of age, with some being as young as four and five years of age.
The children were subjected to inconceivable and degrading abuse, and the physical and emotional harm to the children in the footage informed the gravity of the respondent’s conduct. Not only are the children violated at the time of filming the acts but are re-victimised each time the footage is downloaded and viewed by offenders. Searching for this material and engaging in online conversations also encourages the continual production of this type of material.[4]
[4] R v Turvey (2017) 127 SASR 425 at [134]-[138] (Hinton J, Nicholson and Lovell JJ agreeing).
The objective seriousness of the respondent’s offending was further demonstrated by the background of internet searches dating back to 2015, including the terms “family showers together”, “family nude beach fun”, “younger the better” and “daddy’s young innocent ones”.
The respondent’s prospects of rehabilitation are guarded by his denial of having a sexual interest in children; his denial of actively accessing the material; his lack of insight into the offending; and his failure to undertake rehabilitative programs.
The applicant submitted the sentencing Judge’s discretion to suspend the sentence was predominantly based on the limited volume of material and the view that the respondent had not engaged in accessing the material for an extended period of time. The sentencing Judge also noted the respondent’s lack of antecedents and employment history.
Although the amount of child exploitation material was a relevant sentencing factor, the applicant submitted the sentencing Judge placed undue weight on the limited volume of material which failed to acknowledge the depravity and objective seriousness of the content which called for a deterrent sentence.
The applicant submitted the amount of material is only one factor to be considered. In R v Brandon (“Brandon”) the Court stated:[5]
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, 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).
(footnote omitted)
[5] R v Brandon [2024] SASCA 9 at [26].
The applicant submitted that whilst the number of images was not large, this did not detract from the seriousness of the offending, nor from the need for a deterrent sentence to be imposed.[6]
[6] R v Brandon [2024] SASCA 9 at [34].
The applicant submitted less weight should be given to the respondent’s personal circumstances due to his lack of insight into his offending. That is, the applicant submitted the respondent’s personal circumstances were not such that they would displace the seriousness of the offending. It was not open to the sentencing Judge to find good reason existed to suspend the sentence.
Respondent’s submissions
The respondent submitted that the sentence imposed was not manifestly inadequate. The respondent accepted that the sentence was low but submitted that it was within the permissible range of sentences.
The sentencing Judge took into account all matters adverse to the respondent including the factors that made the matter more serious; no important factor was overlooked. It was appropriate for the sentencing Judge to give weight to the fact that the applicant had spent 21 days in custody and that he had no prior convictions.
Turning to the objective seriousness of the offending, the respondent accepted that he possessed the most serious kind of child exploitation material. However, he submitted there were only a small number of items, the material was not for sale or distribution, no profit was made, and the length of time he possessed the material was brief. The one criterion that is met cannot be extrapolated to state the offending is at the higher end of objective seriousness.
Offending of this nature is inherently serious, however the wide variations in personal circumstances and objective seriousness means there will be cases where the community interest is best served by a restorative focus. This is more so when a salutary period has been spent in custody which addresses personal and general deterrence, as well as community protection.
The respondent submitted that the ability to suspend a sentence for this offending has been preserved by Parliament. In 2019, Parliament amended the Sentencing Act 2017 (SA), prohibiting the imposition of a suspended term of imprisonment upon conviction for serious sexual offences.[7] Possession of child exploitation material was not defined as a serious sexual offence. Additionally, in 2022, Parliament amended the Criminal Law Consolidation Act 1935 (SA) by increasing the maximum penalty for possession of child exploitation material,[8] but retained a suspended sentence as an option for those convicted of this offence.
[7] Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA).
[8] Statutes Amendment (Child Sex Offences) Act 2022 (SA).
Permission to appeal
The principles relating to prosecution appeals are well established. Permission to appeal with respect to a prosecution appeal against sentence will only be granted where the prosecution has established an error of the kind established in House v The King[9] and where the case is “rare and exceptional”.[10]
[9] (1936) 55 CLR 499.
[10] Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

Manifest inadequacy is a conclusion. In determining whether a sentence is or is not plainly inadequate, an appellate court must determine whether the sentence imposed fell outside the permissible range such that it must be plainly inadequate. As has been previously explained by this Court, prosecution appeals involve a two-step process. First, an appellate court determines whether error has been established, as error must be identified before an appellate court can interfere. A specific error may be identified if a sentencing judge has acted upon a wrong principle, mistaken the facts, failed to consider a material consideration, or allowed irrelevant matters to impact the decision. Alternatively, where a specific error cannot be identified, the sentence imposed can be so manifestly excessive or inadequate that the only inference to be drawn is that there was a failure to properly exercise the sentencing discretion.[11]
[11] House v The King (1936) 55 CLR 499; R v Kelly [2023] SASCA 22 at [35] (Lovell JA); R v Bradley [2024] SASCA 56 at [53].
If no error is established, then permission to appeal would be refused. If error has been established, then the offender has not been sentenced according to law. A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. To succeed on this ground, absent identifying a specific error, the applicant must establish that the sentence imposed was unreasonable or unjust.[12]
[12] R v Buttigieg (2020) 352 FLR 170; R v McIntyre (2020) 138 SASR 17; R v Yaroslavceff [2022] SASCA 123; R v Kelly [2023] SASCA 22 at [36] (Lovell JA); R v Bradley [2024] SASCA 56 at [54].
Assuming the sentence is found to be manifestly inadequate, the Court must, before resentencing, consider whether permission to appeal should be granted.
An appellate court’s determination that a sentence is manifestly inadequate does not, of itself, justify permission to appeal. The question of whether the prosecution should be granted permission to appeal involves issues ranging beyond those involved in the merits of the appeal.[13] The prosecution will only be granted permission if it is necessary to maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges about sentencing for particular crimes or types of crime to be corrected; or the sentence is one that not only amounts to an error but has the capacity to undermine the public confidence in the administration of justice.[14]
[13] R v Butler (a pseudonym) (2022) 303 A Crim R 296 at [72] (David JA and Mazza AJA); R v Kelly [2023] SASCA 22 at [37] (Lovell JA); R v Bradley [2024] SASCA 56 at [55].
[14] R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ); R v Yaroslavceff [2022] SASCA 123; R v Kelly [2023] SASCA 22 at [45] (Lovell JA); R v Dyett [2023] SASCA 41; R v Lian [2023] SASCA 122 at [118] (Kourakis CJ).
However, the principle of double jeopardy must also be considered. The principle of double jeopardy encompasses the distress and anxiety suffered by a respondent when exposed to the possibility of receiving a more severe sentence than at first instance.[15] As well as error, the prosecution must show that there are strong reasons of public policy to justify an appellate court’s intervention, given the public interest in not twice vexing the respondent.[16]
[15] R v Kelly [2023] SASCA 22 at [40] (Lovell JA); R v Bradley [2024] SASCA 56 at [58].
[16] R v Buttigieg (2020) 352 FLR 170.
A prosecution appeal complaining of a sentence being manifestly inadequate should be approached with great care, and the “rare and exceptional” test should be rigorously applied.[17]
[17] R v Buttigieg (2020) 352 FLR 170; R v Kelly [2023] SASCA 22 at [42] (Lovell JA); R v Bradley [2024] SASCA 56 at [56].
In R v Ametovic the Court observed:[18]
In our view, ‘rare and exceptional’ is better seen not as a test or criterion, or even principle, to be applied or satisfied in a particular case, but rather as a compendious reference to, or reflection of, the importance of restraint in exercising the Court’s jurisdiction to entertain Crown appeals against sentence. It is a reference to, or reflection of, the need to give separate and distinct consideration to whether there is not only error in the sentencing discretion, but also a public interest in intervention that outweighs the hardship to the respondent in exposing him or her to the double jeopardy associated with being resentenced. As such, the phrase directs attention to the nature of the error and hardship, by reference to considerations such as those listed earlier in these reasons.
[18] R v Ametovic [2024] SASCA 153 at [93].
Thus, the “rare and exceptional” test emphasises the need to identify both error and strong reason of public policy to justify intervention.
Discussion
While there is no sentencing guideline or tariff for this type of offending, the principles governing sentence have been addressed in a number of cases, including by this Court in R v Nankivell where the Court stated:[19]
[19] R v Nankivell [2022] SASCA 87 at [37]-[38].
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 and R v Turvey. 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. In the latter, the Court adopted the following summary of those principles from R v De Leeuw:
(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.
The inherent seriousness of CEM offending, and the reasons why it will ordinarily call for a sentence of imprisonment, are apparent from the considerations listed in paragraphs (c) to (i) of the above passage, as expanded upon by this Court in R v Turvey. Where a particular offender’s conduct sits relative to other offences of this type will depend upon a close examination of considerations such as those listed in paragraph (b).
(citations omitted)
For present purposes, it is important to note that paragraph (a) does not represent the law in South Australia. It is not a requirement when sentencing for a matter of this type that there be exceptional circumstances before a suspended sentence can be ordered. As outlined in s 96(1) of the Sentencing Act 2017 (SA), the court may impose a suspend sentence if it thinks that “good reason exists for doing so”. If a case is exceptional, that would be a good reason to suspend a sentence. However, good reason to suspend the sentence does not require exceptional circumstances to exist. That aside, the principles contained in paragraphs (b) to (i) remain relevant to the sentencing process. The factors that are to be considered from the above passage are those concerning the objective seriousness, which can be observed in paragraph (b). As outlined in R v Nankivell, paragraph (c) to (i) of the above passage outline some of the considerations as to why ordinarily a sentence of imprisonment will be imposed.[20]
[20] R v Nankivell [2022] SASCA 87 at [38].
Turning to the objective seriousness of this case, the respondent was in possession of a limited amount of material. However, this factor must be considered and counter-balanced with the following features.
The content of the child exploitation material in this matter was serious. Although all offending of this type is serious, the nature of the material in this instance is of a particular dehumanising and severe category, with some of the penetrative acts involving children as young as four and five years of age.
The search terms located on the respondent’s device dating back to 2015 are consistent with terms that may be used when searching for child exploitation material. His admission to communicating with another online user in relation to sexualised actions he had purportedly committed against his own children also demonstrates the seriousness of the respondent’s acts. The respondent’s denial in having a sexual interest in children and lack of insight into the offending also suggests concern about his prospects of rehabilitation.
The possession of child exploitation material unfortunately remains prevalent in the community. The possession of this type of material contributes to the market for the abuse and degradation of children who are vulnerable members of the community. It is well established that the children are victimised in the making of such content and are re-victimised each time this material is viewed. There is no doubt that a deterrent sentence is required to be imposed to deter like-minded people from committing such offences and to personally deter offenders from committing further acts.
Turning to the complaint of the starting point of two years imprisonment being manifestly inadequate, the applicant did not allege that the sentencing Judge made a specific error and relies on an outcome error.
Both parties referred to the recent Court of Appeal case of Brandon. We accept that the material in Brandon may be considered objectively less serious than what is presented before this Court in this case, however, it is important to distinguish that in Brandon, there was a larger quantity of child exploitation material in the offender’s possession over a longer period of time and a different classification scale was used. Importantly, Mr Brandon had a relevant prior conviction. The Court of Appeal resentenced Mr Brandon with a starting point of 20 months imprisonment.
In the recent case of R v Urch (“Urch”),[21] the Court of Appeal resentenced Mr Urch with a starting point of two years and six months imprisonment. In Urch, there was a substantially larger quantity of child exploitation material in the offender’s possession, the offending occurred over a longer period of time, a different classification scale was used and the case attracted a higher maximum penalty.
[21] [2024] SASCA 28.
Regard should be had to comparable cases unless there is a compelling reason not to do so such as if the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant. Other cases may well establish a range of sentences which have been imposed. However, such cases do not establish that the sentences imposed mark the outer bounds of the permissible discretion. That is, a mere history of sentences that have been imposed for an offence, while identifying a range that has been imposed, does not necessarily establish that this is the correct range, or that its limits are correct.[22] Referring to sentences imposed in other cases is useful only if accompanied by an explanation of the unifying principles considered to be revealed by the disparate sentences.[23] Consistency in sentencing means consistency in the application of relevant legal principles, not numerical equivalence.[24]
[22] Hackett v The Queen [2021] SASCA 32 at [26].
[23] Wong v The Queen (2001) 207 CLR 584 at [59] (Gaudron, Gummow and Hayne JJ).
[24] R v Pham (2015) 256 CLR 550 at [28] (French CJ, Keane and Nettle JJ); Hackett v The Queen [2021] SASCA 32 at [26].
There are similarities and, of course, dissimilarities between Brandon and Urch and the offending in this matter.
However, analysis of those cases demonstrates that the sentence imposed in this matter was within the permissible range, although towards the lower end.
The sentence imposed was not manifestly inadequate.
Suspended sentence
We now turn to the suspension of the sentence. The applicant again did not allege the sentencing Judge made a specific error. Rather, counsel relied on an outcome error being that it was not reasonably open to suspend the sentence.
Ordinarily, an immediate custodial sentence should be served; however, a suspended sentence is an available option. As stated by Doyle CJ in R v Padberg:[25]
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.
(emphasis added)
[25] (2010) 107 SASR 386 at [21]-[22].
The sentencing Judge explicitly had regard to the limited volume of the material in the respondent’s possession, the indications that the respondent was not accessing the material for an extended period of time, his personal circumstances and his time in custody. His lack of prior offending was given limited relevance. The sentencing Judge found good reason to suspend the sentence.
The discretion to suspend a sentence for this type of offending remains open to a sentencing judge. It is important to note that, as was submitted by the respondent, Parliament has preserved the option to suspend a sentence upon conviction of possessing child exploitation material and has not prohibited this sentencing pathway in the recent amendments to the relevant legislation.
Although the amount of child exploitation material in the respondent’s possession was limited, the offending was very serious given the content of the video files. Further, the sentencing Judge found that the respondent has an element of a sexualised interest in children and that he sought and searched for the material including by engaging in online conversations.
The sentencing Judge noted that a benefit of the suspended sentence is that the respondent can undergo sexual offending treatment programs not available if the respondent was in custody.
Having conceded that the sentencing Judge took into account all relevant (and only relevant) considerations in reaching his conclusion, the applicant must establish that the conclusion reached was not open to the sentencing Judge.
The applicant must establish that the conclusion reached was “unreasonable or plainly unjust”. To put that another way, the applicant must establish that the conclusion has not been reached according to rules of reason and justice.[26]
[26] House v The King (1936) 55 CLR 499.
Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case, subject of course to statutory restrictions.[27] The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct answer.[28] It is not sufficient for this Court to conclude that it would have come to a different decision to the one reached by the sentencing Judge.[29]
[27] Elias v The Queen (2013) 248 CLR 483.
[28] Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[29] Hackett v The Queen [2021] SASCA 32 at [8].
To establish appealable error, the applicant must satisfy the Court that the sentencing Judge failed to properly exercise the discretion actually entrusted to the sentencing court.
The remarks of King CJ in R v Osenkowski remain relevant. Chief Justice King observed:[30]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. …
[30] R v Osenkowski (1982) 30 SASR 212, 212-213.
In our view, the sentencing Judge’s decision to suspend the sentence was open to him. No error has been established.
Order
Permission to appeal is refused.