R v Nankivell - [2022] SASCA 87

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v NANKIVELL
[2022] SASCA 87
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
1 September 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Police located child exploitation material (CEM) on a USB, desktop computer, and mobile phone at the respondent’s residence. The USB contained 10,879 files, the majority of which were accepted to be category 1 CEM (depictions of children not involving sexual activity). But the respondent’s CEM also included 265 files within category 4 (depictions of penetrative sexual activity involving a child).
The respondent pleaded guilty to two counts of possessing CEM, contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA), with one count aggravated by reason that the depicted children were under the age of 14 years old.
The sentencing judge imposed a single sentence on both counts, commencing with a notional head sentence of 18 months, reduced by 25 per cent for his plea of guilty and made cumulative with a separate sentence on account of his breach of a suspended sentence bond. The overall head sentence was 1 year, 4 months and 29 days imprisonment, with a non-parole period fixed of 8 weeks.
The Crown seeks permission to appeal on the basis that the starting point for the head sentence as well as the non-parole period were manifestly inadequate and warrant the intervention of the Court.
Held, per the Court, granting permission to appeal, allowing the appeal, and resentencing the respondent:
1.The non-parole period, but not the starting point for the head sentence, was manifestly inadequate.
2.It is appropriate in this case for the Court to intervene so as to reinforce the principles governing the fixing of an appropriate non-parole period.

3. In resentencing the respondent, a higher non-parole period of 7 months is fixed.
Criminal Law Consolidation Act 1935 (SA) ss 5AA, 63A, referred to.
Bugmy v The Queen (1990) 169 CLR 525; Cumberland v The Queen (2020) 94 ALJR 656; Deakin v The Queen (1984) 58 ALJR 367; Dinsdale v The Queen (2000) 202 CLR 321; Director of Public Prosecutions v Garside (Cth) (2016) 50 VR 800; Director of Public Prosecutions v Hum (a pseudonym) [2022] VSCA 57; Everett v The Queen (1994) 181 CLR 295; Foley v Police [2008] SASC 338; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; Hili v The Queen (2010) 242 CLR 520; Knight v Victoria (2017) 261 CLR 306; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Power v The Queen (1974) 131 CLR 623; R v Buttigieg [2020] SASCFC 38; R v Cecchin [2017] SASCFC 109; R v Chunza [2018] SASCFC 74; R v Creed (1985) 37 SASR 566; R v De Leeuw [2015] NSWCCA 183; R v Durovka [2015] SASCFC 140; R v Hayes [2012] SASCFC 96; R v Hogan (2015) 252 A Crim R 409; R v Lacey [2013] SASCFC 146; R v Major (1998) 70 SASR 488; R v Matthews [2008] SASC 259; R v McIntyre (2020) 138 SASR 17; R v Moore [2015] SASCFC 9; R v Morse (1979) 23 SASR 98; R v Nemer (2003) 87 SASR 168; R v O’Connor [2012] SASCFC 15; R v Oliver [2003] 1 Cr App R 28; R v Osenkowski (1982) 30 SASR 212; R v Padberg (2010) 107 SASR 386; R v Palmer [2016] SASCFC 34; R v Power [2008] SASC 288; R v Riddle (2012) 113 SASR 314; R v Ryan [2012] SASCFC 136; R v Sarandoglou (2010) 107 SASR 396; R v Shrestha (1991) 173 CLR 48; R v TAA [2021] SASCA 36; R v Turvey (2017) 127 SASR 425 (2017) 127 SASR 425; Snodgrass v The Queen [2021] SASCFC 20, considered.

R v NANKIVELL
[2022] SASCA 87
Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA

THE COURT: The respondent was sentenced for two offences relating to his possession of child exploitation material (CEM). In this Crown appeal against sentence, the Director of Public Prosecutions contends that the starting point for the head sentence, and the non-parole period, are manifestly inadequate and warrant the intervention of this Court.
Background
The respondent pleaded guilty to two counts of possessing CEM, contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA) (CLCA).[1] Count 1 was a basic offence of possessing CEM, and carried a maximum penalty of 5 years imprisonment.[2] Count 2 was aggravated by reason that the depicted children were under the age of 14,[3] and carried a maximum penalty of 7 years imprisonment.[4]
[1] With both counts treated as a “first offence” for the purposes of s 63A.
[2] Contrary to s 63A(1)(a)(i) of the CLCA.
[3] CLCA, s 5AA(e)(i).
[4] Contrary to s 63A(1)(a)(ii) of the CLCA.
The sentencing judge imposed a single sentence for these two counts. His Honour started with a notional head sentence of 18 months imprisonment, which he reduced by 25 per cent on account of the respondent’s early plea of guilty to 1 year, 1 month and 15 days imprisonment.
The offending the subject of these two counts breached a suspended sentence bond that had been imposed for an offence of driving dangerously. The respondent’s sentence of 3 months and 2 weeks imprisonment for that offence had been suspended upon his entering into a bond to be of good behaviour for a period of 2 years. Having determined that the breaching conduct was not trivial, and that there were no grounds to excuse the breach, the sentencing judge revoked the bond and ordered that the sentence of 3 months and 2 weeks imprisonment be served cumulatively upon the sentence for possessing CEM.
This resulted in an overall head sentence of 1 year, 4 months and 29 days imprisonment. The sentencing judge fixed a non-parole period of 8 weeks, being just over 10 per cent of the head sentence.
Factual basis of the offending
On 26 May 2021, having received information that the respondent was in possession of CEM, police attended the respondent’s residence and seized a number of items, including a mobile phone in the respondent’s possession. CEM was located on a USB, a desktop computer and the respondent’s mobile phone. The USB contained 10,879 files. Of this total number of files, 2,146 files were already tagged as pre-identified CEM. An investigating officer then tagged a total of 2,461 additional files. From this it was accepted that it could be “safely estimated” that the majority of the files on the USB were CEM. Smaller numbers of files were located on the desktop computer and mobile phone.
Count 1 reflected possession of the following basic CEM:
·on the USB - 2,146 files of pre-identified CEM, and a further 1,503 images and nine videos;
·on the desktop computer - three files of pre-identified CEM, and a further video; and
·on the mobile phone – one image and six videos.
Count 2 reflected possession of the following aggravated CEM:
·on the USB - 847 images and 102 videos;
·on the desktop computer - 11 images and 41 videos; and
·on the mobile phone - four images and 34 videos.
The CEM was categorised using a nationally endorsed classification standard, the first five levels of which correspond with the Oliver scale.[5] Most of the files located were within category 1 (depictions of children not involving sexual activity). However, in addition to some files within category 2 (depictions of non-penetrative sexual activity of children) and category 3 (depictions of non-penetrative sexual activity between children and adults), there were 265 files within category 4 (depictions of penetrative sexual activity involving a child).
[5] R v Oliver [2003] 1 Cr App R 28; see the discussion of the use of this scale in R v Turvey (2017) 127 SASR 425 at [141] (Hinton J, Nicholson and Lovell JJ agreeing).
The investigating officer explained that the majority of the CEM images and videos located on the respondent’s mobile phone were aggravated category 4 material, depicting penetrative sexual acts between adults and child victims under the age of 14. The CEM found on the respondent’s devices included not only images and videos of naked and erotically posed children ranging in ages from infants to 17 years of age, but also videos of the anal, vaginal and oral rape of both male and female children. It included videos showing incest, and the forced rape of male and female toddlers, as well as other vile and depraved sexual conduct involving the taunting and humiliation of the victim children.
According to the investigating officer, the date and time stamps connected to the files found in the respondent’s possession indicated that the respondent had accessed the relevant CEM from as early as 2015, meaning that at least some of it had been in his possession for about six years when it was discovered by the police.
The respondent cooperated with the police by providing passcodes to his devices, and made some broad admissions to police.
Personal circumstances of the respondent
The respondent was born in Adelaide in January 1981, and was 41 years of age when sentenced.
The sentencing judge accurately summarised the respondent’s case as a tragic one; an example of the cycle of sexual abuse victims who suffer a dysfunctional upbringing and complex mental health problems, including drug addiction, and who then become offenders themselves.
As the sentencing judge explained, the respondent’s childhood was dysfunctional from an early age, with his parents being unhappily married and separating when he was three years of age. He thereafter had little contact with his father.
The respondent lived with his mother, who had a number of highly dysfunctional de facto relationships with partners who were not only violent, but also regularly abused alcohol and drugs. The respondent witnessed his mother being assaulted on a number of occasions, and was also regularly physically abused himself, including when he tried to intervene on his mother’s behalf. None of his mother’s partners treated him appropriately. At times they encouraged her to abandon him.
The respondent’s mother had three further children with two stepfathers. Each of these children have also experienced difficulties in their lives due to their dysfunctional upbringing.
From the age of five, the respondent was sexually abused by his older cousin. This abuse occurred on a regular, approximately monthly, basis. From when the respondent was about 10 years of age, the abuse included regular anal rape. So regular and frequent was the abuse that the respondent grew up believing that it was normal. The abuse only ceased when the respondent was about 13 years of age.
The respondent attended 12 different schools. The last of these was a college at which his father paid for him to board. He became sexually active with other male boarders, and when this was discovered by the school he was sent to a residential treatment unit for juvenile sex offenders. However, due to staff shortages and lack of supervision, he was left to engage in further sexual activity with the other juveniles resident in the facility. The residents were effectively left to engage in activity that served only to reinforce their existing sexual dysfunction.
At the age of 16, the respondent was essentially evicted from his mother’s house and commenced living independently. He did not have a job and was not in a relationship. He survived by living with a 27 year old male friend for about a year or so. But in return for this accommodation, the respondent was required to grant his friend regular sexual favours. From the respondent’s perspective, he did what he had to in order to survive.
The respondent has suffered from chronic loneliness throughout his life. During his schooling he did not make many friends, and was regularly bullied for his homosexuality. He successfully completed year 10, and has basic literary and numeracy skills. But he has not obtained any further educational or occupational qualifications.
The respondent has a mixed work history. During his twenties he obtained three jobs, each of which he held for about a year. At the age of 29, he obtained a job as a call centre operator, which he held for about six years. However, since finishing that work, the respondent has been largely unemployed. He is currently on a Newstart Allowance, but owes a significant amount of money in police and court fines as a result of his history of motor vehicle offending. He is on a $50 a fortnight repayment plan. The respondent is pessimistic about his prospects of obtaining secure employment again in the future, given the stigma associated with his offending.
The respondent identifies as homosexual, and whilst sexually active has never been married or in a significant relationship. He has a long history of illicit drug use, involving primarily cannabis, ecstasy and methylamphetamine. It would seem that he regards his drug use as a form of self-medication for the mental health difficulties he has faced as a result of his traumatic upbringing. He has poor general health. He suffered two heart attacks in May 2021, requiring a significant period of hospitalisation.
The sentencing judge had the benefit of a detailed report from a psychologist, Dr Balfour. The report addressed the respondent’s dysfunctional childhood and sexual abuse, explaining that, through no fault of his own, the respondent became a highly sexualised, and sexually confused, child. The respondent’s consultation with Dr Balfour was the first time he had felt able to disclose the childhood sexual abuse he had suffered. Dr Balfour described witnessing the acute distress that the respondent displayed when speaking about these matters for the first time. He also explained the link between the respondent’s dysfunctional childhood and his offending, and addressed the treatment that might be available to assist the respondent in his rehabilitation.
The sentencing judge summarised the key aspects of Dr Balfour’s report in the following terms:
Mr Balfour concluded that your serial childhood sexual abuse has had a devastating long-term effect upon your adult psycho/social functioning. The abuse defined your sexual orientation and resulted in you inappropriately sexually experimenting with other boys at school. That caused you to be referred to a residential rehabilitation facility for juvenile sex offenders but due to staff shortages at that institution very unfortunately your childhood sexualization was actually socially reinforced by the other dysfunctional adolescents who resided there.
All of this left you with ambivalent and confusing feelings of sexual attraction towards children. In Mr Balfour's opinion when you viewed child exploitation material you were projecting your own childhood traumatisation onto the victims. Mr Balfour concluded that collectively your childhood abuse has resulted in you developing a complex post traumatic stress disorder which following your eviction from your mother's home at the age of 16 has led to a dysfunctional adult life dominated by your complex mental health problems, addiction and maladaptive sexuality.
In Mr Balfour's opinion you have used illegal drugs to self-medicate your mental health problems and have consequently developed a severe addiction, in particular to cannabis and alcohol. Your drug use has impaired your social judgment, led to behavioural disinhibition and emotional lability which is the context of your current offending. You have a history of generalised impulse control problems therefore engaging in reckless thrill seeking offending behaviour. You have low esteem, poor body image and poor coping skills. You have a low tolerance for stress and frustration. You are prone to feeling depressed and anxious.
While Mr Balfour concludes that you do satisfy the technical diagnostic criteria for paedophilic disorder you do not gravitate towards children in the community and your primary sexual orientation is adult males. He says you are in the early stages of the disorder when it is most amenable to rehabilitation and there are no suggestions you have progressed towards becoming a contact offender.
In Mr Balfour's opinion you admitting your childhood abuse is a very significant first step towards your rehabilitation after enduring years of trauma, shame and survivor guilt.
In Mr Balfour's opinion you are in great need of psychological treatment for your complex post-traumatic stress disorder. He suggests prolonged exposure therapy, cognitive processing therapy and eye movement desensitisation and re-processing therapy.
The good news is that these are recognised successful treatments for mental health issues such as yours which in Mr Balfour's opinion have a 70-80% success rate. You also require intense drug and alcohol rehabilitation to cease your reliance on illicit drugs and, finally, Mr Balfour believes the psycho/social problems that have led to your current offending would benefit from strict community supervision and assertive case management by a Community Corrections officer.
You are remorseful for your current offending and Mr Balfour assesses you as exhibiting genuine victim empathy.
The respondent had no history of any similar or sexual offending. However, he had a long history of summary motor vehicle offending, culminating in his conviction and sentencing for driving dangerously in September 2018. For that offending, the respondent was, on 29 August 2019, given a sentence of 3 months and 2 weeks imprisonment. The sentence was suspended upon the respondent entering into a 2 year bond.
It was notable that some of the respondent’s prior offending was connected with his illicit drug use (in particular, two offences in 2018 and 2019 respectively of driving a motor vehicle with methylamphetamine in his fluid or blood). Whilst the driving dangerously offence also occurred in a context of illicit drug use, the bond that was imposed did not have any terms requiring that the respondent refrain from illicit drug use or otherwise undertake any treatment for his addiction.
The sentencing judge noted Dr Balfour’s observation that the respondent did not appear to have any motivation to cease using cannabis or methylamphetamine, both of which the respondent had acknowledged that he was still using.
The sentence imposed
In arriving at the sentence to be imposed, the sentencing judge commenced by observing that the respondent’s CEM offending was plainly a breach of the condition of his suspended sentence bond that he be of good behaviour. Further, the breaching conduct was not trivial, and there were no grounds to excuse the breaches or reduce the sentence to be imposed. Accordingly, the suspended sentence of 3 months and 2 weeks imprisonment was to be brought into effect in full.
As for the two possessing CEM offences, the sentencing judge decided to impose a single sentence of 18 months imprisonment. His Honour reduced this by 25 per cent for the respondent’s plea of guilty to 1 year 1 month and 15 days imprisonment.
The sentencing judge ordered that the sentences be served cumulatively, giving a total sentence of 1 year 4 months and 29 days imprisonment. His Honour reasoned that the offending was too serious for there to be good reason to suspend the sentence, or for it to be served on home detention, adding that not only was this type of offending serious, but also that in the respondent’s case it involved a significant number of images and videos over three devices, and occurred against a long history of irresponsible, albeit dissimilar, offending.

However, the sentencing judge considered that the respondent’s personal circumstances warranted an unusually low non-parole period. In fixing a non-parole period of only eight weeks, his Honour explained:
That said, your history, the consequences of your history, and the complex mental health issues your childhood abuse has caused you mean that in many ways you were never given a chance. You have struggled with your mental health and the addictions that came with your attempts to self-medicate which have led to a difficult, dysfunctional and depressing life so far.
In the unique circumstances of your case in the court's view an unusual sentencing course is warranted. Whilst there must in light of all the circumstances and in particular the seriousness of the offence be a short period of actual incarceration, in the court's view that should be short; such that it will ideally sever your physical dependency on illicit drugs but it will allow for an extended period of intense parole supervision which should require you and enable you to participate in the supervised structured rehabilitation set out on p.22 of Mr Balfour's report. In particular Owenia House, Psych Med and referral to a clinical psychologist who has expertise in assisting homosexual men with unique mental health requirements, such as Mr Greg Fell based at Psychology on South.
In the unique circumstances of your case there will be a non-parole period of eight weeks. So that is a little less than two months.
…
In conclusion, Mr Nankivell, there are many tragic aspects to this case and you understand that what you have done is serious, but you also have made a very significant step in your life, which is that first step of admitting what happened to you. What happened to you was not your fault. It was done to you and the good news is that there are very good processes of counselling and treatment and understanding that are available through psychology to help you turn the corner and live a much happier life, one that won't depend on drugs for treatment.
The appeal
As mentioned at the outset of these reasons, the Director contends that both the starting point of 18 months for the two possessing CEM offences, and the non-parole period of eight weeks, are so manifestly inadequate as to warrant the intervention of the Court.
The principles governing a conclusion of manifest inadequacy are not in dispute. They were summarised by the High Court in Dinsdale v The Queen[6] and Hili v The Queen.[7]In the second of these cases, the plurality explained:
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.
[6] Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J).
[7] Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The plurality went on to explain that “what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence.”[8] An assessment of whether a sentence is manifestly inadequate thus 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.[9] But ultimately, manifest inadequacy is a conclusion, and may not permit of lengthy analysis or exposition.
[8] Hili v The Queen (2010) 242 CLR 520 at [60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[9] R v Morse (1979) 23 SASR 98 at 99 (King CJ, White and Mohr agreeing).
The starting point
The seriousness with which possessing CEM is viewed by Parliament is apparent from the maximum penalties for a first offence of 5 years imprisonment for a basic offence, and 7 years imprisonment for an aggravated offence.
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[10] and R v Turvey.[11]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.[12] In the latter, the Court adopted the following summary of those principles from R v De Leeuw:[13]
[10] R v Padberg (2010) 107 SASR 386.
[11] R v Turvey (2017) 127 SASR 425.
[12] R v Padberg (2010) 107 SASR 386 at [27]-[29] (Doyle CJ, White J agreeing).
[13] R v De Leeuw [2015] NSWCCA 183 at [72] (Johnson J, Ward JA and Garling J agreeing) (omitting citations); applied in this State in R v Turvey (2017) 127 SASR 425 at [134] (Hinton J, Nicholson and Lovell JJ agreeing), R v Cecchin [2017] SASCFC 109 at [52] (Lovell J, Parker and Doyle JJ agreeing) and Snodgrass v The Queen [2021] SASCFC 20 at [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 at [25] (Redlich and Beach JJA) and Director of Public Prosecutions v Hum(a pseudonym) [2022] VSCA 57 at [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.
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.[14] 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).
[14] R v Turvey (2017) 127 SASR 425 at [130]-[139] (Hinton J, Nicholson and Lovell JJ agreeing).
In the present case, in addition to the inherent seriousness of the offence of possessing CEM, there were several factors that tended to underscore the need for a substantial term of imprisonment. There were two offences, one of which was aggravated given the young age of the child victims. The offending involved a large number of videos and images, stored across three devices. A large number of children were depicted and hence victimised. A significant proportion of the CEM involved category 4 material, and the material within that category included a number of particularly disturbing and depraved images and videos. The evidence revealed that the respondent had been in possession of at least some of the CEM since 2015.
There was no evidence that the respondent was a participant in any of the images, or that he intended to make any profit or financial gain from the CEM in his possession. That said, this is merely to note the absence of potentially aggravating features rather than to identify any mitigatory feature.[15] It was clear that the respondent had a significant level of personal interest in the CEM in his possession.[16] Whilst the explanation for his interest no doubt lay in his dysfunctional childhood, his reason for possessing the material remained one of his own dysfunctional sexual gratification.
[15] R v Turvey (2017) 127 SASR 425 at [136] (Hinton J, Nicholson and Lovell JJ agreeing).
[16] R v Turvey (2017) 127 SASR 425 at [139] (Hinton J, Nicholson and Lovell JJ agreeing).
Whilst conscious of the limitations in the utility of the exercise, a review of other possession of CEM cases in this Court suggests that the sentencing judge’s starting point of 18 months for the two offences with which he was charged was somewhat lenient. We refer in this respect to decisions such as:
·R v TAA[17] - starting point of 2 years 6 months imprisonment for one count of possessing CEM and one count of aggravated possessing CEM involving 246 images and 97 videos, including some category 4 material;
[17] R v TAA [2021] SASCA 36.
·R v Chunza[18] - various starting points, and an ultimate head sentence (after reductions) of 3 years imprisonment for four counts of possessing CEM and four counts of aggravated possessing CEM involving approximately 1,780 images and 147 videos;
·R v Turvey[19] - starting point of 7 months for one count of possessing CEM, involving images of one victim, but including category 4 CEM; in addition to other sentences for other related offending;
·R v Moore[20] - head sentence of 12 months (after reduction) for one count of possessing CEM and one count of aggravated possessing CEM involving 200 images, spanning categories 1 to 5;
·R v Hogan[21] - starting point of 2 years and 4 months imprisonment for one count of aggravated possessing CEM for 51 magazines, five books, 1,362 images and four videos, including 36 magazines and 88 images classified at category 4;
·R v Durovka[22] - starting point of 16 months imprisonment imposed as a single sentence for one count of aggravated possessing CEM, one count of aggravated obtain access to CEM and one count of obtain access to CEM involving 118 images, two of which were classified at category 4;
·R v Lacey[23] - starting point of 4 years and 2 months imprisonment for one count of aggravated possessing CEM involving 50 videos and six images spanning categories 1 to 5, the majority being category 1 or 2;
·R v Ryan[24] - one sentence imposed of 18 months imprisonment for two counts of aggravated possessing CEM and two further counts of basic possessing CEM, involving 425 files located in 2008, 118 of which were category 4 files, and a further 14 files located in 2011. A Crown appeal against sentence was allowed on the ground of manifest inadequacy, with the matter remitted for resentencing;
·R v Riddle[25] - starting point of 3 years and 3 months imprisonment for one count of aggravated possessing CEM involving 1,955 image and 113 videos, including 227 images and 13 movies classified at category 4;
·R v Hayes[26] - starting point of 18 months imprisonment for one count of aggravated possessing CEM involving over 5,000 images and 34 videos, with 705 of the images being category 4; and
·R v O’Connor[27] - starting point of 20 months imprisonment for one count of aggravated possessing CEM involving 14,657 images and 116 videos, about three quarters of which consisted of category 1 material with the remainder including category 4 material.
[18] R v Chunza [2018] SASCFC 74.
[19] R v Turvey (2017) 127 SASR 425.
[20] R v Moore [2015] SASCFC 9.
[21] R v Hogan (2015) 252 A Crim R 409.
[22] R v Durovka [2015] SASCFC 140.
[23] R v Lacey [2013] SASCFC 146.
[24] R v Ryan [2012] SASCFC 136.
[25] R v Riddle (2012) 113 SASR 314.
[26] R v Hayes [2012] SASCFC 96.
[27] R v O’Connor [2012] SASCFC 15.
On the other hand, it is trite that each case turns on its own facts, and there were features of the respondent’s personal circumstances that justified a measure of leniency.
The sentencing judge rightly emphasised the respondent’s dysfunctional upbringing. As Dr Balfour explained in the passage from his report set out earlier in these reasons, this undoubtedly contributed to the deficits in the respondent’s psychological and social functioning that led to his offending. Whilst personal and general deterrence remained important considerations, this background tended to mitigate the respondent’s personal culpability and the appropriateness of his case as a vehicle for emphasising general deterrence. This was the respondent’s first offence of this type, and Dr Balfour’s report provided reason to think that the respondent might, with the right treatment, be capable of rehabilitation. Whilst there were some countervailing considerations (expanded upon below in addressing the non-parole period fixed by the sentencing judge), these mitigating personal circumstances justified some leniency. It has not been established that the starting point of 18 months imprisonment, even if low, was manifestly inadequate.
The non-parole period
The authorities relevant to a sentencing judge’s discretion in fixing a non-parole period were recently reviewed by this Court in R v McIntrye.[28]
[28] R v McIntyre (2020) 138 SASR 17 at [78]-[86] (Doyle J, Stanley and Hughes JJ agreeing).
At the risk of unnecessary repetition, a non-parole period is intended to reflect the minimum proportion of the head sentence that must be served in order to achieve the purposes of the head sentence.[29] As Mason CJ and McHugh J explained in Bugmy v The Queen,[30] it follows that all factors relevant to the determination of the head sentence are also relevant to the determination of the non-parole period.
[29] Power v The Queen (1974) 131 CLR 623 at 629 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J), 538 (Dawson, Toohey and Gaudron JJ); R v Shrestha (1991) 173 CLR 48 at 62-63 (Brennan and McHugh JJ), 69 (Deane, Dawson and Toohey JJ); Hili v The Queen (2010) 242 CLR 520 at [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Knight v Victoria (2017) 261 CLR 306 at [8] (the Court).
[30] Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J).
Speaking of the consequential need to ensure that the non-parole period reflects a proper proportion of the head sentence, King CJ said in R v Creed:[31]
In fixing a non-parole period, as in fixing a head sentence, a judge has to bear in mind the purposes for which sentences are imposed. The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard both to the offence and the offender, and it must reflect the community’s sense of justice, what in some of the cases is called “the moral sense of the community”. For that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.
In every case, but particularly in the case of serious crimes such as the present, it is necessary that the non-parole period, no less than the head sentence, operate as a deterrent to others who may be minded to commit similar crimes. It is necessary for the courts in fixing non-parole periods, just as in fixing head sentences, to convey a message to those who may be tempted to commit similar crimes, serious crimes, that the commission of those crimes will result in a period spent in prison of a sufficient duration to operate as a real deterrent. It is necessary, moreover, that the courts in fixing non-parole periods, no less than in fixing the head sentence, should make it clear that if there is repetition of crime, there will be no question of the punishment for the subsequent crimes being absorbed in that which is imposed for the earlier crimes, but that on the contrary the offender will have imposed upon him salutary punishment for the subsequent crimes also. The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventive purposes of punishment. The preventive purpose of punishment requires that a serious offender be deprived of the opportunity of posing any further threat to the public for a period of time which the gravity of his conduct justifies.
[31] R v Creed (1985) 37 SASR 566 at 568 (King CJ, Cox and Olsson JJ agreeing).
Kourakis J (as he then was) made observations to similar effect in R v Sarandoglou:[32]
… Moreover, the very proposition that the non-parole period must, “no less than the head sentence”,[33] also reflect the need for punishment, deterrence and prevention necessarily entails a proportionate relationship between the non-parole period and the head sentence. There is an indissoluble and correlative relationship between the proportion of the head sentence spent in custody and the proportion spent on parole. I find it conceptually impossible to conceive the period of imprisonment which is the minimum necessary for deterrence and punishment without also determining the scope to allow for parole because a view about one will necessarily affect the position taken on the other. Moreover, the same factual circumstances will be relevant to both the head sentence and the non-parole period.
The process which I have just described is, as I observed in Foley v Police,[34] the reason that non-parole periods are often fixed at what is sometimes called the usual proportion.[35]
In R v Shrestha, Deane, Dawson and Toohey JJ explained that:[36]
Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing Judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine according to the circumstances which then exist, whether the offender should be released on parole.
It follows that, although a non-parole period is fixed as a certain period of time, it must necessarily reflect a proper proportion of the head sentence. …
[32] R v Sarandoglou (2010) 107 SASR 396 at [33]-[36].
[33] Rv Creed (1985) 37 SASR 566 at 568 (King CJ).
[34] Foley v Police [2008] SASC 338 at [17].
[35] R v Major (1998) 70 SASR 488 at 492 (Doyle CJ); R v Power [2008] SASC 288 at [29] (Sulan J, Doyle CJ and Besanko J agreeing); R v Matthews [2008] SASC 259 at [12]-[13] (Kelly J, Duggan and Anderson JJ agreeing).
[36] R vShrestha (1991) 173 CLR 48 at 69.

Whilst the same array of considerations as those governing the selection of a head sentence are thus relevant when fixing a non-parole period, the weight to be ascribed to each may nevertheless differ given the different function to be served by a non-parole period. Factors personal to the defendant, and in particular those relevant to his or her prospects for rehabilitation, may assume a greater significance when fixing a non-parole period than they carried when determining an appropriate head sentence.[37]
[37] Bugmy v The Queen (1990) 169 CLR 525 at 532 (Mason CJ and McHugh J); R v Palmer [2016] SASCFC 34 at [3] (Kourakis CJ) and [26] (Stanley J); R v McIntyre [2020] SASCFC 101 at [81]-[83] (Doyle J, Stanley and Hughes JJ agreeing).
It is accepted that there is no norm for a non-parole period, nor a prescriptive range within which all non-parole periods must fall.[38] While thus emphasising the breadth of the sentencing judge’s discretion when fixing a non-parole period, it would at the same time be unrealistic to ignore that ordinarily (and in the absence of statutory intervention) an appropriate non-parole period will be somewhere around the range from about one-half to three-quarters of the head sentence. As Kourakis CJ said in R v Palmer:[39]
Nonetheless the discretion demands a balancing of the competing sentencing objectives. A judge’s prediction about an offender’s future behaviour is not the determinative criterion. Indeed judges neither have a crystal ball nor any special intelligence with which to make such predictions. The need for punishment and protection will generally result in non-parole periods of between one half and three quarters of the head sentence. Where in that range, or in special cases where outside that range, the non-parole period is fixed will depend on a realistic balancing of positive and negative indications of the offender’s prospects of rehabilitation. That balancing does not necessarily entail the making of a prediction. This is a fraught area. There is a real risk of heuristic error by judges who, for one reason or another, believe they have gained an intuitive understanding of the psychology of the defendants they are sentencing. The safer course is to fix a lower or higher proportion by reference to the usual range depending on whether the offender has relatively poor or good indications for rehabilitation. That assessment must be based largely on factors like the offender’s antecedents, previous responses to community corrections orders, degree of contrition and demonstrated willingness and capacity to overcome criminogenic factors.
[38] Hili v The Queen (2010) 242 CLR 520 at [36]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[39] R v Palmer [2016] SASCFC 34 at [4].
Against this background, the Court in R v McIntyre emphasised the need for a realistic balancing of the positive and negative indications of the offender’s prospects of rehabilitation in fixing an appropriate non-parole period, and in particular the need to justify a period outside of the usual range. In that case the absence of any reason for a lower than usual non-parole period was demonstrative of error.[40]
[40] R v McIntyre [2020] SASCFC 101 at [85]-[89] (Doyle J, Stanley and Hughes JJ agreeing).
In the present case, the sentencing judge did identify several aspects of the respondent’s personal circumstances that were supportive of him having a reasonable prospect of successful rehabilitation. On the other hand, it would seem from the very low non-parole period ultimately fixed by his Honour that he overlooked not only some of the countervailing considerations, but also the role of the non-parole period in assisting to achieve the sentencing objectives of the head sentence.
The sentencing judge’s reasons for fixing a non-parole period of 8 weeks, or approximately 10 per cent of the length of the head sentence, have been set out earlier. His Honour considered that only a short period of actual incarceration was appropriate, with the intention that this would sever the respondent’s dependency on drugs and then permit him an extended period of intense parole supervision, enabling him to participate in a supervised and structured program for his rehabilitation.
These considerations, in combination with all of the other relevant considerations, including his expressions of remorse and victim empathy, did justify a shorter than usual non-parole period. But they did not justify the exceedingly short non-parole period that was fixed in this case.
Whilst the respondent’s dysfunctional upbringing and consequential difficulties with substance abuse were significant considerations, the sentencing judge seems to have lost sight of other factors that suggested that there remained both a need for personal deterrence, and reasons to be cautious about the respondent’s prospects for rehabilitation. In this respect it was relevant that the respondent had a history of offending which, while very different in nature, nevertheless demonstrated a tendency to act irresponsibly, and a lack of respect for authority and court orders. It was also relevant that, according to Dr Balfour, the respondent is not motivated to address his substance abuse difficulties. At the time he consulted Dr Balfour, despite showing some glimpses of insight into the role that his substance abuse had played in his offending, and expressing a preparedness to undertake whatever courses or programs might be required of him, the respondent did not seem motivated to embark upon the path of rehabilitation contemplated by Dr Balfour.
More fundamentally, the non-parole period fixed by the sentencing judge was inadequate to achieve the other sentencing objectives required to be achieved by not only the head sentence, but also the non-parole period. In the context of the present offending, for the reasons explained earlier, general deterrence was a particularly important objective. The fixing of such a short non-parole period tended to undermine rather than support the head sentence’s ability to achieve this objective.
In short, the lack of any meaningful proportion between the non-parole period and head sentence, and hence between the non-parole period and the gravity of the offending, rendered this aspect of the sentence imposed by the sentencing judge manifestly inadequate. The sentence, by reason of the disproportionately low non-parole period, even having regard to the respondent’s personal circumstances, did not achieve the objectives of the sentencing exercise.
Conclusion
Despite our conclusion that the Director has established manifest inadequacy in the non-parole period imposed by the sentencing judge, it does not necessarily follow that permission to appeal should be granted. The circumstances in which permission to appeal will be granted on a Crown appeal are confined to rare and exceptional cases.[41]
[41] Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson & Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [1]-[2] (French CJ, Crennan and Kiefel JJ); Cumberland v The Queen (2020) 94 ALJR 656 at [4]-[6], [33] (Bell, Gageler and Nettle JJ).
Permission to appeal may be appropriate where this Court’s intervention is desirable to address an error of principle, to establish and maintain adequate standards of sentence, to enable idiosyncratic views of individual judges to be corrected, or to correct a sentence which is so inadequate that it involves an error of principle.[42] Alternatively, if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, it may be appropriate to grant permission to appeal even though no point of general principle will be established by the case.[43]
[42] R v Buttigieg [2020] SASCFC 38 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing); R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).
[43] R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ); R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ).
It is relevant in the present case that the respondent, having received his sentence, had an expectation that he would be eligible to apply for parole within eight weeks. The hearing of this appeal was expedited so that it was heard only a few days after the expiration of that period. Whilst the respondent had made an application for parole by the time the appeal was heard, that application has not been determined and he remains in custody. At the conclusion of the appeal hearing the Court announced its intention to deliver its decision within about a week so as to minimise the duration of the respondent’s uncertainty as to his fate.
Against this, the sentencing judge’s approach to the sentencing exercise, although obviously well-intentioned, and designed to give effect to his Honour’s views as to the most effective path to rehabilitation, nevertheless reflected an idiosyncratic approach. While the sentencing exercise involves a broad discretion, and permits leniency (even a measure of mercy[44]) in appropriate cases, it is important that sentencing judges not lose sight of some of the broader sentencing objectives in pursuit of more individualised justice for an offender. It is unfortunate that the respondent is to be twice vexed in this way, but it is appropriate that this Court intervene so as to reinforce the principles governing the fixing of an appropriate non-parole period. Accordingly, permission to appeal should be granted.
[44] R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).
On resentencing the respondent, and in circumstances where no error has been established in the respondent’s head sentence (which reflected a starting point of 18 months imprisonment for the two possessing CEM offences) we would not adjust the head sentence. Like the sentencing judge, we would not suspend this sentence or order that it be served on home detention. It was not suggested that this Court should do otherwise.
However, we would fix a significantly higher non-parole period. Having regard to the range of considerations already canvassed in these reasons, we would fix a non-parole period of 7 months, being slightly in excess of 40 per cent of the head sentence.
The following orders should be made. We grant permission to appeal, and allow the appeal. We set aside the sentence below, resentence the respondent to the same head sentence of 1 year 4 months and 29 days imprisonment, but fix a non-parole period of 7 months.