R v TAA - [2021] SASCA 36

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v TAA
[2021] SASCA 36
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
21 May 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Crown application for permission to appeal against sentence.
The respondent pleaded guilty to various offences, including:
• Two counts of possessing child exploitation material contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA);
• Three counts of failing to comply with various reporting obligations contrary to ss 44(1a) and 44(1) of the Child Sex Offenders Registration Act 2006 (SA); and
• Four counts of producing child exploitation material contrary to s 63 of the Criminal Law Consolidation Act 1935 (SA).
For the possession offences, the sentencing Judge adopted a starting point of 2 years 6 months imprisonment. This was reduced by 40 per cent on account of his guilty pleas to 1 year 6 months imprisonment. For the reporting offences, the Judge adopted a starting point of 1 year 8 months imprisonment, reduced by 40 per cent on account of his pleas to 1 year imprisonment. For the production offences, his Honour adopted a starting point of 3 months imprisonment. This was reduced by 20 per cent on account of his guilty pleas to 2 months 13 days imprisonment.
The sentencing Judge accumulated the above sentences, arriving at a total head sentence of 2 years 8 months 13 days imprisonment. His Honour fixed a non-parole period of four-fifths of the head sentence, being 2 years 1 month 29 days, and back-dated the sentence to commence on 25 July 2018, being the date the respondent was taken into custody. The Judge noted that the non-parole period had passed, and that the sentence would soon be completed. The respondent has since been released from custody.
The Director seeks permission to appeal on the basis that the penalty imposed for the production offences (in particular, the starting point of 3 months imprisonment) is manifestly inadequate.
Held (by the Court), refusing the application for permission to appeal:
1. Having regard to the seriousness of the respondent’s conduct in respect of the production offences, particularly in the context of the other offending for which the respondent pleaded guilty and his other relevant prior offending, the starting point of 3 months was manifestly inadequate.
2. However, in light of considerations of double jeopardy arising from the respondent’s release from prison prior to the appeal, and the fact that manifest inadequacy has only been contended in respect of one component of a significantly greater overall sentence, it is not necessary for the Court to intervene.
Criminal Law Consolidation Act 1935 (SA) ss 63A & 63; Child Sex Offenders Registration Act 2006 (SA) ss 44(1a) & 44(1), referred to.
R v Padberg (2010) 107 SASR 386; House v The King (1936) 55 CLR 499; Hili v The Queen (2010) 242 CLR 520; R v Morse (1979) 23 SASR 98; Pearce v The Queen (1998) 194 CLR 610; Markarian v The Queen (2005) 228 CLR 357; Johnson v The Queen (2004) 78 ALJR 616; R v Bolbolt [2013] SASCFC 110; R v Arthur [2019] SASCFC 4; Everett v The Queen (1994) 181 CLR 295; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; Cumberland v The Queen (2020) 94 ALJR 656; R v Harkin (2011) 109 SASR 334; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Buttigieg [2020] SASCFC 38; R v Maroroa [2020] SASCFC 68; R v Borkowski (2009) 195 A Crim R 1, considered.

R v TAA
[2021] SASCA 36

Court of Appeal – Criminal: Kelly P, Doyle and Bleby JJA

THE COURT: The Director of Public Prosecutions seeks permission to appeal against the sentence imposed upon the respondent.
The respondent pleaded guilty to various offences, namely:
·two counts of possessing child exploitation material on 25 July 2018,[1] the second of which was aggravated by reason of the children depicted in the material being apparently under the age of 14 years;
·one count of failing to comply with a reporting obligation relating to reportable child contact,[2] and two counts of failing to comply with reporting obligations;[3] and
·four counts of producing child exploitation material on 10 April, 16 April, 17 April and 26 May 2018.[4]
[1] Contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), with a maximum penalty of 5 years imprisonment for the basic offence, and 7 years imprisonment for the aggravated offence.
[2] Contrary to s 44(1a) of the Child Sex Offenders Registration Act 2006 (SA) (the CSORA), with a maximum penalty of a fine of $25,000 or 5 years imprisonment.
[3] Contrary to s 44(1) of the CSORA, with a maximum penalty of a fine of $10,000 or 2 years imprisonment.
[4] Contrary to s 63 of the CLCA, with a maximum penalty of 10 years imprisonment.
For the two possession offences, the sentencing Judge adopted a starting point of 2 years 6 months imprisonment. This was reduced by 40 per cent on account of his guilty pleas to 1 year 6 months imprisonment. For the reporting offences, his Honour adopted a starting point of 1 year 8 months imprisonment. This was reduced by 40 per cent on account of his guilty pleas to 1 year imprisonment. For the production offences, his Honour adopted a starting point of 3 months imprisonment. This was reduced by 20 per cent on account of his guilty pleas to 2 months 13 days imprisonment.
The sentencing Judge accumulated the above sentences, arriving at a total head sentence of 2 years 8 months 13 days imprisonment.
The respondent fell to be sentenced as a serious repeat offender. The Judge fixed a non-parole period of four-fifths of the head sentence, being 2 years 1 month 29 days. The sentence was back-dated to commence on 25 July 2018, being the date the respondent was taken into custody.
The proposed appeal, which the Director seeks permission to bring, is confined to a contention that the penalty imposed for the production offences (in particular, the starting point of 3 months imprisonment) is manifestly inadequate. The Director contends that this sentence does not maintain adequate standards of punishment, and that this Court should intervene, and resentence the respondent, to ensure that the sentence imposed below does not erode public confidence in the administration of justice.
Factual basis of the offending
As the Director’s proposed appeal does not challenge the adequacy of the penalties imposed for the possession and reporting offending, it is not necessary to set out the factual basis for that offending in any great detail.
In respect of the possession offending, it is sufficient to note that it involved possession of (i) 188 images in the aggravated category, 84 videos in the aggravated category and a small number of images and videos in the non-aggravated category, all of which were located on a mobile phone; (ii) 2 videos in the non-aggravated category on a tablet; and (iii) 58 aggravated images and 13 aggravated videos on a laptop computer. A significant proportion of the images and videos were in category 4 on the child exploitation material scale, depicting penetrative sexual activity between adults and children. The respondent admitted possession of these images and videos located on his various devices. He said that he received them via the messaging application known as KIK.
In respect of the reporting offending, the more serious charge involved the respondent communicating with a 16 year old girl in Wellington, New Zealand in an attempt to have her travel to Australia. The sentencing Judge found the respondent did so with an intention to engage in sexual activity with the girl, and noted the opinion of a psychologist who assessed the respondent to the effect that he would likely have succeeded in doing so had the girl’s mother not become aware of the communications and intervened. His Honour noted the respondent’s statement to the police that while he had feelings for the girl, he did not intend to act upon them until she reached the age of 18. However, his Honour said that he had difficulty accepting that account of events given that the respondent had first started communicating with the girl in 2011, and hence at a time when she was just nine years of age.
The other two reporting offences involved the respondent’s failure to advise police that he had purchased a motor vehicle, and his failure to advise police that he had activated a KIK account.
Turning to the production offences, the sentencing Judge described the offending as involving the digital preservation of a message exchange between the respondent and another adult on the KIK application, during which they engaged in role-play that involved one adult pretending to be a very young child, and the other an adult pretending to engage that child in sexual activity of “an offensive and depraved nature.” The sentencing Judge added that the offences were committed on 10 April, 16 April, 17 April and 26 May 2018, with the first three being “one thread of communications.” His Honour also added that it was common ground that the material was not available to be viewed by any person other than the two participants, and that it was not disseminated in any other way.
The Director takes issue with the description of the first three counts as involving one thread of communications. Counsel for the Director points out that they involved separate communications by the respondent with three different usernames. While not contending that the Judge necessarily made an error in this respect that was itself sufficient to vitiate the sentence, counsel contended that this apparent misunderstanding as to the factual basis for the offending may have contributed to what is submitted to be a manifestly inadequate sentence.
In the circumstances, it is appropriate to set out in full the relevant paragraphs from the Prosecution Factual Summary that formed the agreed factual basis for the production offences:
Commencing at 8:01pm on 10 April 2018 and ending at 12:12am on 11 April 2018 is a chat log between the accused and user, iloerup. The accused acts out the part of a big brother and iloerup the part of his 8 year old sister. The chat logs describe the accused’s “character” engaging in various sexual acts towards the “8 year old sister”, including acts of digital and penile penetration of her vagina, causing her to perform fellatio, and acts of penile penetration of her anus. He also asks her to make her friends available to him.
Commencing on 16 April 2018 and continuing on 19 and 20 April 2018 is a chat log between the accused and user, iiomqitsilana.
a.   On 16 April 2018 iiomqitsilana acts out the part of a 6 year old girl. The accused’s “character” leads her away from the park, buys her food, and then abuses her in a toilet. The acts depicted include causing her to perform fellatio.
b.   On 19 April 2018 the accused seeks out iiomqitsilana. Again the “role play” involves iiomqitsilana as a 6 year old girl who gets led from a waterpark and abused in a toilet. The acts depicted include causing her to perform fellatio, and penile/vaginal intercourse.
c.   On 20 April 2018 iiomqitsilana again plays a 6 year old girl and the accused’s “character” leads her away from school during recess. He spikes her drink using morphine and abuses her while she is drugged and watching television at his house. The abuse depicted includes penile/vaginal intercourse.
Commencing on 17 April 2018 at 4pm is a chat log between the accused and user, 42.zx. User 42.zx plays the part of a 7 year old girl. The accused’s “character” takes the child back to his house and drugs her before performing sexual acts on her, including rubbing her vagina and engaging in an act of penile/anal intercourse.
Commencing on 26 May 2018 is a chat log between the accused and user, gold.ish, who plays the part of a female child aged “3 or 4”. The accused plays the part of her 10 year old brother who comes into her bedroom at night and engages in an act of penile/anal intercourse.
Based upon the above summary, we do not think it is accurate to describe the communications commencing on 10, 16 and 17 April 2018 as involving one thread of communications. The communications were each with a different username, and while it is possible they involved the same person, we do not think this can be assumed based upon the agreed facts. In any event, it is significant that even if they were with the same person, they were nevertheless, as a matter of substance, each quite separate communications.
The respondent’s personal circumstances
The respondent was 30 years of age at the date of sentencing.
In addition to an offence committed when he was a juvenile, which is not relevant for present purposes, the respondent has convictions for two counts of unlawful sexual intercourse with a person under the age of 14 years committed in September and October 2009. They involved the digital penetration of an 11 year old girl when the respondent was 19 years of age. In 2011, he was sentenced for that offending to 3 years imprisonment, with a non-parole period of 12 months.
Other relevant personal circumstances that emerge from the submissions of the respondent’s counsel before the sentencing Judge, and from the reports of a psychologist, Mr Balfour, include the following.
The respondent was raised in a supportive family, with both his parents in gainful employment. He continues to have a positive relationship with both his parents and his two younger sisters.
The respondent left school at the age of 17. He found his education difficult, and required intermittent remedial assistance. While he had some friends at school, he was often the victim of bullying and also suffered from mild dyslexia. He was diagnosed with schizophrenia at the age of 19, and was later granted a disability support pension. He initially received some treatment for this condition but Mr Balfour explained that he had since ceased that treatment. Mr Balfour queried the validity of the respondent’s schizophrenia diagnosis, and certainly did not think any difficulties in this respect were relevant to the respondent’s offending.
The respondent has some skills in the IT area, which he has indicated he would like to develop through some education in computer coding and programming so that he can gain employment in this area. However, as a result of his mental health problems, he has found it difficult to find and keep employment. The respondent had spent most of his time unemployed since leaving school at the age of 17.
The respondent informed Mr Balfour that he has been in two relationships with adult women, each of which lasted about 6 months. He had been in the early stages of a relationship with a young woman, who was 17 years of age, at the time of the present offending. However, she terminated that relationship upon the respondent being charged and taken into custody.
Mr Balfour noted that during his first period of imprisonment, the respondent had successfully completed the Sexual Behaviour Clinic (SBC) program. However, as the sentencing Judge observed, the reference to the respondent’s successful completion of that program must considered in light of the fact that the present offending occurred after he undertook that program.
In Mr Balfour’s view, the respondent satisfied the diagnostic criteria for a paedophilic disorder. He considered that the genesis of that disorder was his own childhood sexualisation. He referred in this respect to the respondent having engaged in a sexual relationship with an 18 year old young woman when he was only 11 years of age. In Mr Balfour’s opinion, the respondent’s offending involved the projection of his own childhood sexualisation.
Mr Balfour noted the respondent’s expressions of remorse for his offending. It is also apparent that the respondent has a degree of insight into the harmful effects of his conduct. However, when Mr Balfour first saw the respondent in 2018, he concluded that the respondent’s prospects of ceasing to offend in the near future were poor. Mr Balfour reassessed the respondent in late 2020, and maintained the opinions he had previously expressed. In particular, he remained of the view that the respondent’s prospects of ceasing to offend were poor. In part this view was based upon his view that the offending involved sexual behaviour over the internet that was not only predatory and deviant in nature, but also premeditated and reasonably skilled in its execution.
Sentencing remarks
After setting out the matters summarised above, the sentencing Judge acknowledged the difficulty of the sentencing exercise with which he was confronted.
In relation to the possession offending, his Honour said that he bore in mind the pronouncements of this Court in cases such as R v Padberg.[5] His Honour emphasised that such offending was not victimless; that the children who are exploited in the production of the material that was possessed suffered shame, degradation and humiliation by reason of the creation of the images and videos, which was repeated whenever the material was viewed. The accessing and possession of such material contributed to the existence of a market for the production of such material.
[5] R v Padberg (2010) 107 SASR 386.
The sentencing Judge observed that the reporting offences varied in seriousness, but said that the communications with the girl from New Zealand were particularly concerning, and noted the opinion of Mr Balfour that it seemed that he was on his way to achieving his goal of offending against that girl.
After announcing the sentences he intended to impose for those two groups of offences (as set out at the commencement of these reasons), the sentencing Judge turned to the production offences. His Honour had earlier observed that the charges of producing child exploitation material each carried a maximum penalty of 10 years imprisonment, but added that he bore in mind that that offence covered a wide range of circumstances, and that the respondent’s offending, “whilst disturbing, falls at the lower end of the scale of such offending.” His Honour said that, having regard to the nature of that material, he would have imposed a single penalty of 3 months imprisonment. After a discount of 20 per cent on account of his guilty pleas, the Judge considered it appropriate to impose a sentence of 2 months 13 days imprisonment for that offending.
As mentioned at the outset of these reasons, the sentencing Judge directed that the sentences be served cumulatively, giving a total sentence of 2 years 8 months 13 days imprisonment. His Honour fixed a non-parole period of 2 years 1 month 29 days, being four-fifths of the head sentence. His Honour back-dated the sentence to 25 July 2018, being the date when the respondent was taken into custody. He noted that it followed that the non-parole period had passed and that the sentence would soon be completed. Indeed, the respondent has since been released.
The sentencing Judge concluded by noting that the respondent would be subject to supervision under the CSORA.
Manifest inadequacy
The Director’s challenge to the respondent’s head sentence is based solely upon a contention of manifest inadequacy; that is, a contention that the head sentence was unreasonable or plainly unjust in the sense required by House v The King.[6]
[6] House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).

In Hili v The Queen,[7] the plurality of the High Court stated:[8]
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”. …
[7] Hili v The Queen (2010) 242 CLR 520.
[8] Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (citations omitted).
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.”[9] An assessment of whether a sentence is manifestly excessive or 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.[10] But ultimately, manifest excess or inadequacy is a conclusion, and may not permit of lengthy exposition.
[9] Hili v The Queen (2010) 242 CLR 520 at [60].
[10] R v Morse (1979) 23 SASR 98 at 99 (King CJ).
In applying this approach, it must of course be borne in mind that there is no single correct sentence,[11] and that sentencing judges should be allowed “as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.”[12]
[11] Pearce v The Queen (1998) 194 CLR 610 at [46] (McHugh, Hayne and Callinan JJ); Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[12] Johnson v The Queen (2004) 78 ALJR 616 at [26] (Gummow, Callinan and Heydon JJ); see also Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
Turning to the present case, the maximum penalty of 10 years imprisonment demonstrates the seriousness with which the offence of producing child exploitation material is viewed by Parliament.
While acknowledging that there is no sentencing standard for this offence, and that the circumstances of the offending and offender may vary widely, the Director contends that a starting point of 3 months imprisonment was manifestly inadequate for the four counts of producing child exploitation material committed by the respondent in this case. The Director contends that while the nature of the present offending is not the most serious example of offending of this kind, in the circumstances of the present case it was particularly insidious conduct such that the penalty was manifestly inadequate.
There are very few authorities in this State considering offences involving fictitious role-playing conversations where there is no identifiable victim. While conscious of the limited assistance that can be gleaned from comparison with other cases, it is useful to mention the two such authorities brought to the Court’s attention.
The first is R v Bolbolt.[13] In that case, the appellant pleaded guilty to two counts of producing child pornography. The offending involved engaging in role-play in an internet chat room, against a significant background of similar but uncharged conduct. The appellant also pleaded guilty to one count of aggravated possessing child pornography in relation to 149 images. The appellant had no relevant prior convictions and there was evidence before the sentencing Judge that demonstrated his commitment to rehabilitation. On appeal, the starting point of 4 years imprisonment was found to be well within the range for offending of this nature.[14]
[13] R v Bolbolt [2013] SASCFC 110.
[14] R v Bolbolt [2013] SASCFC 110 at [34].
Secondly, in R v Arthur[15] the appellant had pleaded guilty to four counts of producing child pornography that consisted of engaging in fantasy discussion involving sexual conduct with children. In relation to that conduct, and despite the discussion not relating to any actual (or at least identifiable) children, he was sentenced on the basis of a starting point of 6 months imprisonment for each offence. That was reduced on account of his guilty pleas, and all of the sentences were ordered to be served concurrently. No complaint was made about this aspect of the sentence on appeal.
[15] R v Arthur [2019] SASCFC 4.
While the offence of producing child exploitation material does raise some offence-specific considerations, it also raises the range of considerations relevant to child exploitation offending more generally. It is not necessary to recite all of those matters; they have been identified and explained in decisions of this Court such as R v Padberg.[16]
[16] R v Padberg (2010) 107 SASR 386 at [17]-[29].
The potential harm associated with the production of child exploitation material is obvious. It of course involves the humiliation and victimisation of any children the subject of that material, not only when initially produced but also when subsequently disseminated and viewed. The production, and likelihood or risk of subsequent dissemination and viewing, of such material also runs the risk of stimulating persons with paedophilic inclinations to indulge those inclinations and hence expose yet further children to victimisation.
It is true that in the present case the material produced by the respondent did not involve any actual or identifiable child, and that the material was not intended for dissemination beyond the participants in the communications. While these are relevant considerations, the conversations nevertheless ran the risk of encouraging the paedophilic tendencies of the other participant(s) in those conversations with the attendant risks described above.
Further, and in any event, the seriousness of the conduct can also be appreciated by considering the respondent’s conduct in the context of the other offending for which the respondent pleaded guilty. The communications provide an insight into the dangerously depraved thoughts of the respondent, evidencing a sexual interest in girls as young as three or four years of age. They include fantasising about kidnapping, sexual abuse in a public toilet and abusing a child who had been drugged on morphine. The fact that the respondent’s conduct in acting out his fantasies in his communications with others occurred in circumstances where he was in possession of child exploitation material at a time proximate to the offending, and had previously offended in a manner indicating his preparedness to act upon his sexual interest in children, serves to underscore the seriousness of the production offences. It is also relevant that despite having served his sentence for this earlier offending, and indeed having undertaken the SBC program he was offered while in prison, he has not managed to rehabilitate himself. According to Mr Balfour, he continues to suffer from a paedophilic disorder and has poor prospects of avoiding further offending.
Having had regard to all of these matters, we are satisfied that the starting point of 3 months for the production offences was manifestly inadequate. In our view, that notional starting point was outside the permissible range having regard to the particularly serious features of the respondent’s offending that we have sought to identify, and his concerning personal circumstances. Even allowing for a significant degree of concurrency between the four production offences, a significantly longer term of imprisonment for the production offences was required to ensure that the relevant sentencing objectives were achieved.
Permission to appeal
Despite our conclusion that the Director has established manifest inadequacy in a component of the head sentence 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.[17]
[17] Everett v The Queen (1994) 181 CLR 295 at 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); 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).
The rare and exceptional case is one where allowing the appeal is desirable in order to address an error of principle, to establish and maintain adequate standards of sentence, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, or to correct a sentence which is so inadequate that it amounts to an error of principle.[18]
[18] R v Harkin (2011) 109 SASR 334 at [19] (Gray and Sulan JJ); R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ); House v King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
Alternatively, if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake the 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.[19]
[19] R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ); R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ).
There are two significant features of the present case that tend to militate against the intervention of this Court.
The first is that while considerations of double jeopardy are relevant in any Crown appeal against sentence, they loom particularly large in a case such as the present where the respondent has already been released from prison prior to the appeal being heard. It was unfortunate, and indeed unsatisfactory, that it took so long for this matter to reach the point of sentence. It seems that this delay was largely attributable to the fact that it involved multiple court files which progressed at different rates, and some delays in obtaining the second report from Mr Balfour. Regardless of the precise reasons for the delay, it was not something that was the fault of the respondent and has served to exacerbate the hardship that he would be subjected to were this Court to increase his sentence with the result that he was required to serve further time in prison.
We have not overlooked that the Director sought to have this matter expedited so that it could be heard prior to the respondent being released, and that the respondent has since been taken into custody on some further (similar) charges. The concern with double jeopardy remains nevertheless a real one.
The second feature of this case that is relevant in this context is that manifest inadequacy has only been contended in respect of one component of a significantly greater overall sentence. Not only was the overall sentence not challenged, but counsel for the Director went close to acknowledging the adequacy of that ultimate sentence to achieve the relevant sentencing considerations.
Bearing all of the above matters in mind, and while satisfied that the starting point for the component of the overall sentence referable to the production offences was manifestly inadequate, we are satisfied that this can be adequately addressed through the observations that have been made in these reasons.[20] It is not necessary for the Court to intervene.
[20] R v Buttigieg [2020] SASCFC 38 at [57]-[64]; R v Maroroa [2020] SASCFC 68 at [96], citing R v Borkowski (2009) 195 A Crim R1 at [70].
Conclusion
For these reasons, we refuse the Director’s application for permission to appeal.