R v Ross - [2018] SASCFC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROSS
[2018] SASCFC 120
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
21 November 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
The respondent pleaded guilty to one count of possessing child exploitation material, one count of disseminating child exploitation material, and two counts of rape. From a starting point of 5 years imprisonment, and applying a 30% discount for the respondent’s plea, the sentencing Judge imposed a sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years. The sentencing Judge found good reason to suspend the sentence.
The Director of Public Prosecutions seeks permission to appeal against the sentence imposed on the ground that it is manifestly inadequate. The applicant submits that the sentencing Judge erred in two respects:
1.   In finding that there was good reason to suspend the sentence.
2.   In sentencing the respondent on the basis that he had an “intellectual disability”.
Held per the Court, granting permission to appeal and allowing the appeal:
1.   It was not open for the sentencing Judge to find good reason to suspend the sentence.
2.   The sentence imposed by the sentencing Judge is set aside.
3.   The respondent is resentenced to 4 years and 7 months imprisonment with a non-parole period of 3 years and 8 months, both the sentence and non-parole period to commence today, or from such time as the respondent is taken into custody, whichever is the later.
Criminal Law Consolidation Act 1935 (SA) ss 48, 63A(1)(a), 63(b); Sentencing Act 2017 (SA) ss 52, 53, 54(1)(b), referred to.
Everett v The Queen (1994) 181 CLR 295; Dinsdale v The Queen (2000) 202 CLR 321; AB v The Queen (1999) 198 CLR 111; R v Hibeljic [2018] SASCFC 35; R v Symons [2018] SASCFC 48; R v MJJ; R v CJN (2013) 117 SASR 81; R v Turvey (2017) 127 SASR 425; R v Fuller [2015] SASCFC 71; R v Belcher [2016] SASCFC 17; R v Nemer (2003) 87 SASR 168; R v Brace [2011] SASCFC 54, considered.

R v ROSS
[2018] SASCFC 120
Court of Criminal Appeal: Kourakis CJ, Blue and Lovell JJ

THE COURT: The complainant, a 14-year-old girl, sent to the respondent photographs of herself naked over the social media application Snapchat. The respondent saved the pictures onto his phone. He then threatened to distribute the photographs to other people in the local area unless the complainant had sex with him. The complainant had sex with him but only because of the threat. Shortly thereafter the respondent repeated that process. Again the complainant had sex with him because of the threat. The respondent also sent the pictures to the complainant’s sister to pressure her to have sex with him. The respondent pleaded guilty to one count of possessing child exploitation material,[1] one count of disseminating child exploitation material,[2] and two counts of rape.[3]
[1] Contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935.
[2] Contrary to s 63(b) of the Criminal Law Consolidation Act 1935.
[3] Contrary to s 48 of the Criminal Law Consolidation Act 1935.
The sentencing Judge imposed one sentence in respect of all four offences. From a starting point of 5 years imprisonment, and applying a 30% discount for the respondent’s early plea, the respondent was sentenced to 3 years and 6 months imprisonment. A non-parole period of 2 years was fixed. The sentence was suspended on the condition of entry into a 3 year good behaviour bond. A condition of the bond was that the respondent was also required to perform 300 hours of community service. In considering that good reason existed to suspend the sentence the sentencing Judge took into account the respondent’s youth and lack of prior convictions and that he suffered from an intellectual disability.
The applicant seeks permission to appeal against the sentence imposed. The Director submits that the sentence is manifestly inadequate for two reasons. First, the sentencing Judge erred in finding that there was good reason to suspend the sentence, and secondly in sentencing the respondent on the basis that he had an “intellectual disability”.
Crown appeals against sentence
It is well established that leave should only be granted with respect to Crown appeals against sentence in cases that are “rare and exceptional”.[4] As Brennan, Deane, Dawson and Gaudron JJ said in Everett v The Queen:
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.[5]
[4] Everett v The Queen (1994) 181 CLR 295 at 299.
[5] Everett v The Queen (1994) 181 CLR 295 at 299.
However, the prosecution will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would “shock the public conscience”.[6]
[6] R v Nemer (2013) 87 SASR 168 at 172 [24]; R v Harkin (2011) 109 SASR 334 at 349 [77].
As King CJ observed in R v Hicks:
… prosecution appeals fall to be decided on somewhat different considerations than appeals by persons under sentence. When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.[7]
[7] R v Hicks (1987) 45 SASR 270 at 273.
In R v Osenkowski King CJ observed:
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.[8]
[8] R v Osenkowski (1982) 30 SASR 212 at 212.
Recently Hinton J in R v McIntosh observed:
Accepting this, the content of the rare and exceptional test as articulated by King CJ in Osenkowski and Barwick CJ in Griffiths exemplify categories of case where strong reasons of public policy outweigh the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State. Thus, on a Crown appeal against sentence the Director must establish error in the House v The King sense and, in addition, persuade the Court that there exists such strong reasons of public policy which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed. Only then will permission be granted.[9]
(Citations omitted)
[9] R v McIntosh [2017] SASCFC 87 at [16].
Thus, a prosecution appeal against the suspension of a sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied.
As with any appeal against sentence, error must be identified before an appellate court may interfere. Kirby J in Dinsdale v The Queen observed:
As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court’s authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.[10]
(Citations omitted)
[10] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340 [58]-[59] (per Kirby J).
In AB v The Queen Hayne J explained the significance of the difference between specific error and manifest excess or inadequacy to the task of this Court.[11] His Honour said:
[11] AB v The Queen (1999) 198 CLR 111.
The task of the Courts of Criminal Appeal in this country in hearing appeals against sentences is a limited task and it is governed by well-established principles that have been repeatedly stated. In particular:
"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
Such cases are, however, different from cases in which the complaint is that the sentence is manifestly excessive. There, as was said in House v The King:
"It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.[12]
(Citations omitted)
[12] AB v The Queen (1999) 198 CLR 111 at 159-160 [129]-[130].
A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.
The facts
Counts 1 and 2
The respondent chatted with the complainant on the application Snapchat when she was aged 14 and he was 20. They both live in a small town in the State’s south-east. Apparently, they did not know each other prior to their communications on Snapchat. After some brief communications using the application, the respondent requested that the complainant send photographs of herself, naked, to him. He sent to her a photograph of his penis and she sent to him a picture of her naked chest. The respondent requested more images. The complainant sent to him two further images of her naked chest and one image of her vagina. The respondent kept the images on his phone. The images were found on his phone following a search by police. The respondent’s possession of the images is the subject of his plea of guilty to count 1.
A few days later the complainant received a text message from the respondent. She did not recognise the number, and asked who was messaging her. The respondent replied, “we gotta make a deal”. She replied, “who is this and what do u want”. He responded, “I got something u would not want around town and it return u gotta meet up with me [sic]”. He then sent to her one of the images of herself naked. She asked him not to show anyone and said “u know im only 14”. The respondent replied “yea and u won’t tell anyone that were gonna fuck whenever I want either [sic]”.
The complainant was clearly distressed by the respondent’s threats. At one point the respondent said “I can easily send them nudes all around town”, to which the complainant replied “Your threating my by saying that ok and please don’t [sic]”. He replied “All I wanna do if fuck u a few times and I won’t send the nudes around [sic]”. At another point, in response to the respondent saying “We will fuck as many times as I want to”, the complainant told him that she didn’t feel comfortable. The respondent replied, “Too bad”.
The conversation continued, with the complainant begging the respondent to delete the photographs, and the respondent insisting that he would send them around town unless she agreed to have sex with him. The messages between the two of them continued in a similar manner for several months.
In January 2017, the respondent sent two photographs of the complainant’s naked chest to her sister K. K suspected that the photographs were of her sister due to a visible piercing that she recognised. The respondent then attempted to use the photographs to persuade K to have sex with him. K refused. The respondent’s transmission of the photographs of the complainant to K is the conduct amounting to the offence of disseminating child exploitation material the subject of count 2.
Counts 3 and 4
The two counts of rape were committed between December 2016 and May 2017, in the context of the respondent’s repeated threats to send the images of the complainant naked to people in the town unless she complied with his demands to have sex.
On the first occasion the respondent sent a text to the complainant to tell her that he was coming over that evening. The complainant was home alone. The respondent arrived at her house and she went outside into the driveway. He told her to get in the car, but she refused. However, he again threatened to send the photographs around the town. She got into the respondent’s vehicle. The respondent drove to a nearby cemetery and parked the car. He made the complainant take off her pants and, when she said she did not want to take the rest of her clothes off, he took them off her. On a number of occasions she told him that she did not want to have sexual intercourse, and he reminded her of the photographs he had. He then had penile vaginal sexual intercourse with her in the passenger seat of the car.
The second rape was committed about two months after the first. The respondent contacted the complainant via Snapchat and again threatened that he would disseminate the images unless she had sexual intercourse with him. The respondent went to the complainant’s house some time later and she got into his car. He drove them to the same cemetery where the first rape had occurred. She asked him to take her home. He refused to do so until she had sex with him. He then engaged in penile vaginal sexual intercourse with the complainant while she was inside the vehicle and he stood outside the vehicle on the passenger side.
In May 2017 K suspected that the complainant, her sister, had engaged in sexual activity with the respondent. She confronted the complainant, and asked her if the respondent had touched her. The complainant became upset and said that she had only done it because the respondent had photographs of her naked. The matter was reported to the police.
The complainant is now 15 years old. As described in the victim impact statement referred to by the sentencing Judge, the respondent’s actions have had a severe emotional impact on her and have changed her life significantly. Since the incident she describes feeling worried, sad and depressed. Whereas she used to be confident and bubbly, she now feels unsafe and has trouble trusting others. Her schooling has suffered.
The Sentencing Remarks
The sentencing Judge considered the circumstances of the offending described above. In considering the respondent’s personal circumstances the sentencing Judge had regard to three reports – a psychological report prepared in 2010 by Mr Malcolm while the respondent was at school, a psychiatric report prepared in February 2018 by Dr Branson, and a neuropsychological report prepared in May 2018 by Mr Reid.
Mr Malcolm tested the respondent who in 2010 was in year 8 at school. Mr Malcolm tested the respondent using the Wechsler Intelligence Scale for Children. He did not report the “raw” scores but set out the respondent’s score relative to the average level for his age group. The focus of the report was to provide strategies to assist the respondent with his schooling.
Dr Branson was provided with the report of Mr Malcolm. Dr Branson assessed the respondent as having difficulty in interpreting and working with social cues, and with understanding social communication. Dr Branson considered that the respondent “would have been unaware of the effect of his offending on the victim, and would have been unable to read her reactions as well as the average person would have done”.
Dr Branson opined that the respondent’s overall intellectual capacity was at the 13^th percentile suggesting that he was “well below average and probably in the borderline intellectually handicapped range”.
Dr Branson considered that if imprisoned the respondent would be “a very vulnerable prisoner indeed, and is likely to be subject to the influences around him from other prisoners, to a great degree”. Dr Branson thought that the prison environment would be “more of a hindrance than a help towards his rehabilitation”.
Mr Reid carried out neuropsychological testing of the respondent. Mr Reid used part of the Wechsler Adult Intelligence Scale when assessing the respondent to allow direct comparison with the testing undertaken by Mr Malcolm in 2010. He also conducted other tests.
Mr Reid considered that the current neuropsychological and intellectual assessment placed the respondent’s verbal IQ in the low average range (IQ range 80 to 89), and towards the upper end of that range. He concluded:
Further neuropsychological assessment does reveal an obvious difficulty with thinking through and making sense of information given to him. Where there is a very obvious and simple link, he can do this, but when information presented to him is somewhat more obscure, he responds individually, without integrating all the clues and information and it was also noted he does this in a somewhat impulsive manner. Other cognitive tests of executive function also reveal a degree of mild impulsivity in his responding.
Mr Reid reported that although the respondent is not in the “borderline” range of intellectual ability, he has low average verbal skills, difficulty integrating information, and impulsive tendencies. He went on to say:
The overall impression is of a young man who has some tendency to not reason through more complex issues and also be a bit impulsive in his responding...
I would generally agree with the conclusions made by Dr Branson in his report and the results of this neuropsychological examination are in concordance with those opinions. Although [the respondent] is not in the “borderline” range of intellectual ability, he does present with low average verbal skills, features of impulsivity and difficulty integrating information and overall presents in an immature manner.
It could be construed that [the respondent] would have difficulty in making sense of more complex and subtle cues with regard to behaviour, particularly at the specific time of offending, but this does need to be balanced by the other evidence including the content of the messages sent on his mobile telephone.

Like Dr Branson, Mr Reid considered that the respondent would be a “vulnerable individual in a custodial setting”.
At the time of sentencing the respondent was 21 years old. He is the youngest of three children and primarily lives with his father and stepmother. He appears to have struggled academically, although he completed schooling until part way through Year 11.
Grounds of appeal
The Director seeks permission to appeal on two grounds. First that the sentence was manifestly inadequate in that the sentence should not have been suspended and secondly that the sentencing Judge made a process error when finding that Mr Reid had formed the opinion that the respondent had an “intellectual disability”. It is convenient to deal first with the second ground of appeal.
Did the sentencing Judge make a process error?
The Director submitted that the sentencing Judge erred in sentencing the respondent on the basis that he had an “intellectual disability”. The Director submitted that the Judge drew the conclusion that the respondent was intellectually disabled on the basis of the report of the neuropsychologist Mr Reid, when in fact Mr Reid had not drawn that conclusion himself.
On this issue, the Judge stated:
Mr Reid concludes that you have an intellectual disability, although he does not find that you are in the borderline range of that disability. He thinks that you would have difficulty in making sense of more complex and subtle cues with regard to other people’s behaviour but in my view you knew perfectly well what you were doing when you asked for the nude photographs of the girl, when you saved those photographs and when you used them to threaten her to do what you wanted her to do.
(Emphasis added)
Later in his remarks the Judge stated:
Of some significance is your intellectual disability. While I think that you knew perfectly well what you are doing to this young girl, you might have had slightly less awareness of the consequences for her than other people without your disability
It is important to put the sentencing Judge’s remarks in context. First, as has been said many times, sentencing remarks of a Judge are not to be read as if they were considered reasons for judgment. In this matter, the Judge was sitting on a busy circuit and sentenced the respondent two working days after submissions.
Secondly, it is important to understand the context of Mr Reid’s remarks. The remarks of Mr Reid were made when commenting on Dr Branson’s report.
I would generally agree with the conclusions made by Dr Branson in his report and the results of this neuropsychological examination are in concordance with those opinions. Although Mr Ross is not in the “borderline” range of intellectual ability, he does present with low average verbal skills, features of impulsivity and difficulty integrating information and overall presents in an immature manner.
(Emphasis added)
That is, Mr Reid agreed with the opinion of Dr Branson but did not put the respondent in the “borderline” range of intellectual ability. Dr Branson considered that the respondent was “probably in the borderline intellectually handicapped range”.
It is correct to observe that Mr Reid did not use the expression “intellectual disability”. However, it is clear from the reports that both Dr Branson and Mr Reid did consider that the respondent had some intellectual disabilities; they disagreed on exactly where the respondent sat on the continuum of disabilities. Of importance was the nature of the respondent’s disabilities and how they affected his responsibility for the offending. As the sentencing Judge observed “[the respondent] knew perfectly well what you were doing when you asked for the nude photographs of the girl, when you saved those photographs and when you used them to threaten her to do what you wanted her to do” despite his intellectual problems.
The finding by the sentencing Judge that the respondent had “slightly less awareness of the consequences for her than other people without your disability” was consistent with the expert evidence and clearly open on the material before him.
The sentencing Judge correctly identified the respondent’s intellectual deficits and had regard to them appropriately when sentencing. No error has been shown by the Judge using the expression “intellectual disability”.
We refuse permission to appeal on this ground.
Was the sentence manifestly inadequate?
While the Director submits that the sentence imposed is manifestly inadequate, his submissions largely focus on the decision by the sentencing Judge to suspend the sentence of imprisonment. The Director submits that, in finding good reason to suspend the sentence, the sentencing Judge failed to recognise the inherent seriousness of the respondent’s offending. The Director submits that it is open to the Court to consider that the head sentence itself was manifestly inadequate but concedes that there was a wide range of available sentences for the offence of rape. He concedes that the age of the respondent was a significant factor in mitigation of sentence.
The Director submits that, while it is well established that this Court plays an important role in the protection of vulnerable young people, that protection needs to encompass circumstances where young complainants transmit intimate images of themselves over social media. The growing prevalence of offending such as in the present case demands that adequate punishment be imposed, so that others who are minded to offend in a similar way are deterred and so that other victims are not discouraged from coming forward. We agree but note that the Court has, in a number of cases, already indicated the seriousness of this type of offending.
Doyle J in R v Hibeljic observed:
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.[13]
[13] R v Hibeljic [2018] SASCFC 35 at [50].
Kourakis CJ observed in R v Symons:
This Court can, and indeed should, take judicial notice of the legitimate community concern about children engaging the practice known as ‘sexting’. One salient aspect of that concern is the misuse by adults of access to children through social media to persuade or trick them into engaging in sexualised communications.[14]
[14] R v Symons [2018] SASCFC 48 at [6].
In R v MJJ; R v CJN, Kourakis CJ said:
… There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden. There is also a great social cost to the community. Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development. It also generates increasing suspicion and sensitivity about completely innocent behaviours. The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.[15]
[15] R v MJJ; R v CJN (2013) 117 SASR 81 at 102 [84].
In R v Turvey, Hinton J, having discussed the authorities, observed:
… those who choose to sexually abuse children can expect sentences bordering on the severe. Further, the fact that an abuser has not previously been imprisoned, or is of prior good character, will, generally, carry little weight.[16]
[16] R v Turvey (2017) 127 SASR 425 at 451 [128] (Nicholson and Lovell JJ agreeing).
“Sexting”, as it is described, occurs in a wide variety of circumstances. The seriousness of the conduct is increased when, as occurred here, the sexting is between an adult and an immature teenager. “Grooming” of young teenagers (and indeed younger children) is now seen regularly in the criminal courts. The Courts have consistently stated that the protection of children from sexual exploitation requires that general and personal deterrence be given significant weight in the exercise of the sentencing discretion.
The Director submits that the circumstances of the rapes were simply too serious to justify finding good reason to suspend the sentence, even taking into account the respondent’s plea of guilty, his youth, and his other personal circumstances. The Director refers to the content of the text messages. It is clear, he submits, that the respondent was capable of planning and then executing his scheme to force the complainant to have sex with him. The text messages confirm that he knew the complainant was only 14 years old and that she was terrified that he would carry out his threat to distribute the images. The messages also confirmed that he paid no heed to her requests to delete the images. The respondent’s planning included sending the images to the complainant’s sister and putting pressure on her to have sex with him. The communications with the complainant occurred over a significant period of time. The respondent had time to reflect on his conduct and how he was behaving. Clearly he did not take advantage of the time, as he repeated the conduct.
The psychological and psychiatric evidence established that the respondent had some intellectual difficulties, but as the sentencing Judge acknowledged those difficulties did not affect the respondent’s ability to understand that what he was doing was wrong, nor did it prevent him from planning his conduct. As the sentencing Judge found, correctly in our view, the intellectual difficulties led to the respondent having “slightly less awareness of the consequences for her”. As Mr Reid observed:
It could be construed that Mr Ross would have difficulty in making sense of more complex and subtle cues with regard to behaviour, particularly at the specific time of offending, but this does need to be balanced by the other evidence including the content of the messages sent on his mobile telephone.
(Emphasis added)
The respondent submits that this case is not so “rare and exceptional” as to justify granting permission to appeal, nor would the granting of permission to appeal advance any wider purpose than merely correcting an error. The respondent acknowledges that, while sentences for rape should only be suspended in “very rare case[s]”,[17] it is still an option that is open to sentencing judges if good reason is identified.
[17] R v Fuller [2015] SASCFC 71 at [42].
The respondent submits that it was open to the Judge to take into account the respondent’s intellectual difficulties, as he described them, in exercising his discretion to suspend the sentence. The respondent submits that the respondent’s cognitive impairments are such that general deterrence is not as significant a factor as would generally be the case when sentencing for the crime of rape. The respondent submits that the evidence strongly supported the fact that it was unlikely that he would reoffend.
The sentencing Judge, it is submitted, appropriately took into account the personal circumstances of the respondent, including his age and his intellectual difficulties, when considering both the head sentence and the decision to suspend the sentence. In all of the circumstances this was not a case where the prosecution had established that there existed the “rare and exceptional” circumstances such that permission to appeal should be granted.
Discussion
The maximum penalty in respect of count 1, Possessing Child Exploitation Material, is 5 years imprisonment. The maximum penalty in relation to count 2, Disseminating Child Exploitation Material, is 10 years imprisonment. The maximum penalty prescribed for the two counts of rape is life imprisonment.
This Court has recognised that while there is no sentencing standard for rape, it is “one of the most serious offences known to the criminal law”.[18] It is a crime with “many variations”, precluding the identification of a range of available penalties. However, as Sulan J observed in R v Fuller “it is a very rare case in which a person convicted of rape would not receive an immediate custodial sentence.”[19]
[18] R v Belcher [2016] SASCFC 17 at [21].
[19] R v Fuller [2015] SASCFC 71 at [42].
This Court has, however, also observed that sentencing offenders for serious crimes is not a precise process.[20]
[20] R v Nemer (2003) 87 SASR 168 at 170 [8].
In this case, the respondent raped the complainant on two occasions. While the specific timing of the rapes is not clear, the evidence suggests that the two occasions were separated by a period of about two months. Prior to the first rape, and in the intervening period between the first and the second rapes, the respondent threatened to humiliate and demean the complainant by distributing intimate images of her to her acquaintances and their community in general. The sentencing Judge found, and we agree, that the respondent “knew perfectly well” what he was doing when he saved the complainant’s images onto his phone.
The rapes occurred at night, when the respondent knew the complainant was at home alone. As the sentencing Judge observed, the complainant was too frightened to tell her friends or her family about what was happening to her until she was confronted about it by her sister. While there is no evidence that any violence was inflicted upon the complainant over and above the inherent violence of the act of rape itself, the respondent’s prolonged coercion of the complainant, and the overall circumstances of the rapes, establish that this is not at the lower end of seriousness for offending of this kind. In addition, the aggravating features of the possession of the images (count 1) and disseminating the images to the complainant’s sister (count 2) must be taken into account.
General and personal deterrence are of particular importance in cases such as this. As the Director submits, the prevalence of online communication among young people today has provided new opportunities for offending for those inclined to do so. The Court has an important role to play in ensuring that children continue to be protected from sexual offending as technologies develop and evolve.
The sentences imposed on people who exploit intimate images of children online, and who offend physically against their victims under the threat of that exploitation, need to convey that such offending is a gross invasion and will not be tolerated by the community.
We bear in mind that the focus of the Director’s submissions is on the suspension of the sentence. However, the Director also submits that the sentence itself was manifestly inadequate. We consider the sentence itself was manifestly inadequate. The respondent deceitfully procured embarrassing images of the complainant, or abused the trust on which they were given, for the purposes of his gratification. In doing so he tormented her over a period of at least two months. The starting point for the first rape alone could well have approached five years, and the sentence for the second rape more, both because the repetition of the offending must have exacerbated the complainant’s distress and because the respondent’s persistence emphasise the importance of personal deterrence. The respondent’s dissemination of one of the photographs by sending it to the complainant’s sister, in an attempt to pressure her to have sex with him, in itself warranted a sentence of imprisonment. Some level of concurrence was warranted by the connection between the offences, but they were separate incursions against the criminal law. This Court must send a strong message of deterrence where offenders exploit the vulnerability of immature complainants.[21]
[21] R v Brace [2011] SASCFC 54 at [51].
In deciding whether to suspend the sentence, the sentencing Judge had to answer the question whether in all of the circumstances good reason to suspend the sentence existed. At that stage of the sentencing process, we accept that factors personal to the respondent may weigh more heavily in the exercise of discretion. In particular his young age, absence of previous convictions, his intellectual difficulties including his vulnerability in the custodial setting, and his good prospects of rehabilitation are all relevant.
Considering all the circumstances of the offending, and notwithstanding the personal situation of the respondent, it was not open for the sentencing Judge to find good reason to suspend the sentence. The strong message of deterrence where offenders exploit the vulnerability of immature complainants mentioned earlier has less force if sentences for rape are suspended in the ordinary course. It is for this reason that the comments of this Court in R v Fuller,[22] discussed above, are relevant. The offending in this case is also too serious to consider the serving of the sentence on home detention.
[22] R v Fuller [2015] SASCFC 71.
For the reasons expressed earlier, the gravity of the respondent’s offending overwhelms his personal circumstances. Strong reasons of public policy exist which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State.
We therefore grant permission to appeal against sentence and allow the appeal.
Resentencing
As the appeal is allowed, this Court must exercise the sentencing discretion afresh.
We apply s 26 of the Sentencing Act 2017 (“the Act”) and impose one sentence. But for the pleas of guilty, we would have sentenced the respondent to imprisonment for 6 years and 6 months. To allow for the pleas of guilty (up to 30% discount), we reduce the sentence to one of 4 years and 7 months. Good reason does not exist to suspend the sentence. Also, the offending is too serious to allow the sentence to be served on home detention.
As we are of the view that a sentence of immediate imprisonment is warranted, the question arises as to whether the respondent is a “serious repeat offender” within the meaning of s 52 of the Act.
A person will be a serious repeat offender if, relevantly, he or she has committed on at least three separate occasions an offence to which Part 3 Division 4 of the Act applies. Part 3 Division 4 applies to the offences of rape, disseminating child exploitation material and possessing child exploitation material because they are “serious offences” pursuant to s 52(1) of the Act, all carrying a maximum penalty of imprisonment for at least 5 years,[23] and we have determined that a sentence of imprisonment other than a suspended sentence is the appropriate penalty.[24] The respondent committed the four offences for which he is to be sentenced on “separate occasions” within the meaning of the Act. The respondent therefore satisfies the definition of “serious repeat offender”.
[23] Sentencing Act 2017 s 52(2).
[24] Sentencing Act 2017 s 52(3)(b).
Section 54(1)(b) of the Act, for this offending, requires the Court to fix a non-parole period of at least four-fifths the length of the sentence. That is so unless the offender satisfies the Court that the criteria under s 54(2) exist.
Section 54(2) of the Act relevantly states:
(2) However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
It was not submitted here that the respondent satisfied the criteria under s 54(2). In the exercise of our discretion, if it were not fettered by s 54 of the Act, we would have fixed a non-parole period of 3 years. This case illustrates the occasional unintended consequences of mandatory sentencing provisions. An intellectually disabled offender will spend more time in a fraught prison environment than is desirable and much less time on parole than is needed to address his rehabilitation.

We fix a non-parole period of 3 years and 8 months.
Orders
We grant permission to appeal against sentence and allow the appeal. We set aside the sentence imposed by the sentencing Judge and resentence the respondent.
We impose a head sentence of 4 years and 7 months imprisonment. We fix a non-parole period of 3 years and 8 months. Both the sentence and non-parole period are to commence from today, or at such time that the respondent is taken into custody, whichever is the later.