R v Urch
[2024] SASCA 28
•21 March 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v URCH
[2024] SASCA 28
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
21 March 2024
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 - SENTENCE - RELEVANT FACTORS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE
This is an application by the Director of Public Prosecutions (SA) (‘the Director’) for permission to appeal against sentence. The sole ground of appeal is that the sentence imposed was manifestly inadequate.
The respondent pleaded guilty to one count of possessing child exploitation material, contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), for which the maximum penalty is imprisonment for 12 years; and one count of aggravated producing child exploitation material, contrary to s 63(a) of the CLCA, for which the maximum penalty is imprisonment for 12 years.
The respondent was sentenced in the District Court of South Australia on 15 November 2023. For the offence of possessing child exploitation material, the sentencing Judge imposed a sentence of imprisonment for one year. This was reduced by 25 per cent on account of his guilty plea to nine months' imprisonment. For the offence of aggravated producing child exploitation material, the sentencing Judge imposed a sentence of imprisonment for six months. This was reduced by 15 per cent on account of his guilty plea to five months and four days. The sentences were ordered to be served cumulatively resulting in a head sentence of imprisonment for one year, two months and four days. A non-parole period of eight months was fixed. The respondent was given credit for having served 24 days in custody, resulting in a head sentence of imprisonment for 13 months and 10 days with a non-parole period of seven months and six days.
Accordingly, the respondent is eligible to apply for parole in mid-May 2024.
Held, per the Court, granting permission and allowing the appeal:
1.In the circumstances of this case, the sentences imposed by the sentencing Judge were manifestly inadequate. They did not properly meet the demands of general deterrence, nor did they reflect the paramountcy to be afforded to the protection of the safety of the community, especially children.
2.The sentences imposed were so disproportionate to the offending, and the offender, and so far below the permissible sentencing range that to allow them to stand would undermine public confidence in the administration of justice. It is also necessary to grant permission to appeal to maintain sentencing standards for offences involving child exploitation material following recent legislative amendments.
3.The sentence imposed in the District Court is quashed and the respondent is resentenced to a head sentence of two years, two months and 25 days’ imprisonment, with a non-parole period of one year, three months and seven days. The sentence is backdated to commence from 15 November 2023.
Criminal Law Consolidation Act 1935 (SA) ss 63(a), 63A(1); Statutes Amendment (Child Sexual Offences) Act 2022 (SA), referred to.
Hili v The Queen (2010) 242 CLR 520; R v Brandon [2024] SASCA 9; R v De Leeuw [2015] NSWCCA 183; R v Nankivell [2022] SASCA 87; R v Nemer (2003) 87 SASR 168; R v Padberg (2010) 107 SASR 386; R v TAA [2021] SASCA 36; R v Turvey (2017) 127 SASR 425, discussed.
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; Cumberland v R (2020) 94 ALJR 656; Everett v The Queen (1994) 181 CLR 295 ; Green v R; Quinn v R (2011) 244 CLR 462; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; R v Cecchin [2017] SASCFC 109; R v Morse (1979) 23 SASR 98; R v Nedza [2013] SASCFC 142; R v Yaroslavceff [2022] SASCA 123, considered.
R v URCH
[2024] SASCA 28Court of Appeal – Criminal: Livesey P, Doyle and David JJA
THE COURT: This is an application by the Director of Public Prosecutions (SA) (‘the Director’) for permission to appeal against sentence. The sole ground of appeal is that the sentence imposed was manifestly inadequate.
The respondent pleaded guilty to one count of possessing child exploitation material, contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), for which the maximum penalty is imprisonment for 12 years; and one count of aggravated producing child exploitation material, contrary to s 63(a) of the CLCA, for which the maximum penalty is imprisonment for 12 years.
The respondent was sentenced in the District Court of South Australia on 15 November 2023. For the offence of possessing child exploitation material, the sentencing Judge imposed a sentence of imprisonment for one year. This was reduced by 25 per cent on account of his guilty plea to nine months’ imprisonment. For the offence of aggravated producing child exploitation material, the sentencing Judge imposed a sentence of imprisonment for six months. This was reduced by 15 per cent on account of his guilty plea to five months and four days. The sentences were ordered to be served cumulatively resulting in a head sentence of imprisonment for one year, two months and four days. A non-parole period of eight months was fixed. The respondent was given credit for having served 24 days in custody, resulting in a head sentence of imprisonment for 13 months and 10 days with a non-parole period of seven months and six days.
Accordingly, the respondent is eligible to apply for parole in mid-May 2024.
Factual circumstances of the offending
In December 2022, police became aware of an internet account with the username ‘David Urch’ and associated mobile phone number being used to access child exploitation material. On 6 February 2023, police attended a caravan park in Blanchetown, where the respondent was residing. There, police searched the respondent’s caravan and seized a Samsung tablet, a micro-SD card and a Huawei mobile phone. Police also searched the respondent’s vehicle and seized a Samsung mobile phone. The four devices were reviewed by police. There were 1444 images and videos of child exploitation material located on the devices. Police categorised the child exploitation material in accordance with the Australian Child Abuse Schema as follows:
Category 1
(under 13yo) – imagesCategory 1 (under 13yo) - videos Category 2
(under 18yo) - imagesCategory 2 (under 18yo) – videos Totals Samsung phone
(Count 1)69 32 161 8 270 Samsung cloud
(Count 1)4 9 21 3 37 Micro SD card
(Count 1)19 0 123 0 142 Huawei mobile phone
(Count 1)87 39 547 12 685 Huawei cloud storage
Account (Count 1)24 6 255 4 289 Samsung tablet
(Count 1)0 14 0 7 21 Totals 203 100 1107 34 1444
As to the images and video files within Category 1, they depicted penetrative sexual acts between adults and children under 13 years of age. They also contained images and videos of children ranging in age from infants to 13 years old in erotic poses and displaying their breasts and genitalia. There were also videos depicting the rape of predominantly female children. Some of the videos showed adults raping toddlers, including children being restrained, covered in semen and taunted.
The search terms and web history on the Samsung mobile phone and the Huawei mobile phone were consistent with the respondent searching and accessing child exploitation material. There was a video file on the Samsung phone showing the respondent accessing a known child exploitation material website, selecting videos with related titles, and accessing the ‘account settings’ page of the website, which displayed his user account details. The video is time-stamped as being created on 24 September 2022.
While reviewing the Micro SD card, police located images of a girl naked in a bath. The images appeared to be photographs of printed images that had been taken on a mobile phone and included cropped images and close ups of the original image taken of the printed photograph. The cropped images were of varying degrees of magnification and depicted all areas of the girl’s body, specifically her groin area. The images were created on 29 August 2017 and are the subject of Count 2. The naked girl is the respondent’s foster sister, CM, who was approximately 11 years old at the time the original photograph was taken.
Also on the Samsung mobile phone was a video file 14 minutes and 44 seconds in length, timestamped as being created on 24 September 2022. This video depicted the respondent masturbating in a bathroom whilst holding the printed photograph of CM.
On 6 February 2023, the respondent participated in a record of interview with police. He admitted to accessing child exploitation material over the preceding four or five years. He said he located the material on the internet (not the dark net) after it ‘[came] up on my feed’ and he explored it. The respondent also conceded that he downloaded the material onto his device and saved it. He said he had also saved child exploitation material to the cloud. In relation to Count 2, the respondent said that he took photographs with his phone of the image, which he found in box of pornography on the side of the road. He said that he did not know the identity of the girl in the photograph. The respondent’s counsel conceded before the sentencing Judge, and on appeal, that this was not the truth and the respondent knew the child in the bath was in fact his foster sister, CM, and that he had taken the photograph from his parent’s home.
Personal circumstances of the respondent
The respondent was 46 years old at the time of sentence.
He had a difficult childhood as his parents were strict disciplinarians. As a result, he suffered significant mental health issues. His relationship with his parents is now strained. He has two sisters with whom he has no relationship or contact.
The respondent was dependent on illicit drugs and alcohol at the time of the offending. He began using methylamphetamine in his early 20’s, and from that time, regularly consumed the drug. As at the time of sentence, the respondent was still using methylamphetamine.
The respondent has had one serious intimate relationship which lasted for about 13 years. He separated from his partner in 2012. He believed the breakdown of his relationship was due to his drug and alcohol addictions. As a result of the separation from his former partner, he suffered depression, and he became increasingly dependent on methylamphetamine. Together, he and his former partner have a son aged 15 years old who has been diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. While he was once close to his son, they no longer have any contact due to this offending.
The respondent has been employed most of his adult life. His employment history involved working as a landscaper, as well as building retaining walls and fences. He also attempted, unsuccessfully, to retrain as a plumber. The respondent has not been employed since his arrest in early 2023.
The sentencing Judge received a psychiatric report from Dr Jules Begg dated 20 September 2023. The respondent told Dr Begg that he has had an interest in child exploitation material for about six years, and that he is sexually aroused by looking at girls between the ages of ten and twelve years. He also told Dr Begg that he thought his drug and alcohol use might have contributed to his offending as it affected his morality, but conceded the offending was a result of his own choices. Dr Begg noted that despite recognising his alcohol and drug use as causative factors, the respondent had not contacted drug and alcohol services for counselling, which ‘signifies a reduction in insight’.
Dr Begg considered that the respondent did not have a Paedophilic Disorder and was at low risk of re-offending. Dr Begg explained that, based on the respondent’s explanation that he first saw the material when he was attempting to access adult pornography, he considered that the respondent’s offending was a ‘conditioned response’ to the child exploitation material. That is, ‘he probably first saw the material when he was sexually aroused, such that a mental pairing of such material and sexual arousal occurred’. Dr Begg also considered that there were other factors that explained his offending behaviour such as the breakdown of his relationship, depression and isolation. For these reasons, he did not believe that the respondent had a Paedophilic Disorder, and given this was the respondent’s first offence, and ‘he identified factors that contributed to his offending, as well as preventative factors for further offending’, he was at low risk of re-offending.
The prosecution did not challenge the opinion of Dr Begg that the respondent did not suffer from a Paedophilic Disorder, or that he was at low risk of re‑offending.
The respondent has no prior convictions.
The sentencing remarks
The sentencing Judge referred to the seriousness of the offending and that the principles of general and personal deterrence should be emphasised in sentences for offences of this nature. The sentencing Judge noted that offences involving the possession of child exploitation material involve the exploitation and humiliation of children, and provide a market for such material and the continued abuse of children; it is not a victimless crime.
The sentencing Judge considered that, while the respondent fell to be sentenced for the possession of the material found in his possession on the day in question, the fact that this occurred against a background of a history of accessing child exploitation material, meant that the respondent’s lack of prior convictions was not a particular consideration in sentencing.
The sentencing Judge found the offence of producing child exploitation material in this case was a ‘somewhat unusual one and not the type of offence ordinarily encountered in this court’.
The sentencing Judge took into account personal factors concerning the respondent, such as his good work history, difficult upbringing which had an adverse impact on his mental health, and his low risk of re-offending.
The sentencing Judge then imposed the sentence outlined earlier.
Manifest inadequacy
The Director challenged the sentences solely on the basis that they were manifestly inadequate; that is, they were unreasonable or plainly unjust. In Hili v The Queen,[1] the plurality of the High Court said:[2]
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”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
(Citations omitted)
[1] (2010) 242 CLR 520.
[2] Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The question of whether a sentence is manifestly inadequate requires a consideration of those matters relevant to the sentencing task, including the maximum sentence for the relevant offence, 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.[3]
[3] R v Morse (1979) 23 SASR 98 at 99 per King CJ (with whom White and Mohr JJ agreed).
The possession offence was committed after the enactment of the Statutes Amendment (Child Sexual Offences) Act 2022 (SA) on 1 October 2022, which removed the delineation of possession of child exploitation material as either basic or aggravated based on the age of the children depicted and increased the maximum penalty to 12 years’ imprisonment. The previous maximum penalty for this offence was five years’ imprisonment for a basic offence and seven years imprisonment for an aggravated offence. The relatively recent legislative increase of the maximum penalty for the offence of possessing child exploitation materials demonstrates the seriousness with which the offence is viewed, and an intention by Parliament that harsher penalties be imposed on those who commit this type of offence. Accordingly, the increased maximum penalty must be reflected in sentences imposed for conduct occurring after 1 October 2022.
There is no sentencing guideline for the offences of possessing or producing child exploitation material. The principles governing sentencing for offences involving child exploitation material are well settled. It is not necessary to repeat those principles in any detail, as they have been considered in several decisions of the Court, including R v Padberg,[4] R v Turvey,[5] and, more recently, in R v TAA,[6] R v Nankivell,[7] and R v Brandon.[8]
[4] (2010) 107 SASR 386.
[5] (2017) 127 SASR 425.
[6] [2021] SASCA 36.
[7] [2022] SASCA 87.
[8] [2024] SASCA 9.
In R v Turvey, the Court of Criminal Appeal adopted the following summary of relevant propositions, outlined in R v De Leeuw:[9]
[9] [2015] NSWCCA 183 at [72] per Johnson J (with whom Ward JA and Garling J agreed), applied in R v Turvey (2017) 127 SASR 425 at [134] per Hinton J (with whom Nicholson and Lovell JJ agreed); R v Cecchin [2017] SASCFC 109 at [52] per Lovell J (with whom Parker and Doyle JJ agreed); R v Nankivell [2022] SASCA 87 at [37] per Livesey P, Doyle and Bleby JJA; R v Brandon [2024] SASCA 9 at [25] per Livesey P, Doyle and David 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;
(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.
(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.
(Citations omitted)
In the recent decision of R v Brandon, this Court referred to the review in R v Nankivell of other possession of child exploitation cases and considered that there has been a hardening in community attitudes towards, and sentences for offending involving child exploitation material over the last decade or so, since the decision in R v Padberg.[10] It is important to note that the offending in R v Nankivell and R vBrandon was committed before October 2022, and did not attract the increased maximum penalties.
[10] R v Brandon [2024] SASCA 9 at [30] per Livesey P, Doyle and David JJA.
With those general principles in mind, we turn now to consider the objective seriousness of the offending in the present case. In relation to the possession offence, there was a large amount of material located on four devices and two cloud storage accounts, with a total of 1444 files identified and categorised as child exploitation material. There were 203 images and 100 videos classified as Category 1, with content depicting children under the age of 13. Some of these images were particularly serious, depicting penetrative sexual acts between adults and children under the age of 13. The images were properly described by the sentencing Judge as ‘confronting’. As outlined earlier, some of the images depicted the rape of infant children. The respondent admitted accessing child exploitation material for a period of four to five years and having had an interest in child exploitation material for a period of five or six years.
In relation to the production offence, it is to be accepted that this offending was different from many cases which are before the courts, and, as the sentencing Judge said, ‘unusual’ in that the respondent did not produce the original photograph of the child, nor commit the offence when the victim was in fact a child. However, these aspects of the offence must be considered in their complete context. The child depicted in the photograph was 11 years old and the respondent’s foster sister. The respondent had made many cropped copies of the image of his foster sister by which he magnified her genital region. These were deliberate actions calculated to increase his sexual gratification from the image; as much is clear from a recording located on the respondent’s mobile phone showing him masturbating over one of the images of his foster sister. It must not be overlooked that the relevant images depicted a real person from his family. That is, there was an identifiable victim of the offence to whom he indicated a clear sexual motivation. This offending, whilst unusual, still had egregious aspects to it.
The respondent submitted that there was a basis to afford the respondent some leniency. It is true that he had no prior convictions, a good employment history, and was considered by Dr Begg to be at low risk of re‑offending (noting that this opinion was not challenged). However, those are all matters which, whilst relevant, have limited weight in the face of the paramountcy to be afforded the protection of the safety of the community and the need for the principles of general deterrence to be emphasised in the sentence.
Unfortunately, the possession and production of child exploitation material remains prevalent in our community, and this offending creates a market for the abuse and degradation of children, who are vulnerable members of our community. The courts must impose sentences which act as a deterrent to other like-minded offenders from engaging in this type of unlawful conduct for the protection of children from the harmful consequences of similar offending.
We are satisfied that in the circumstances of this case, the sentence imposed by the sentencing Judge for the offence of possessing child exploitation material was manifestly inadequate. Notwithstanding the favourable aspects to the respondent’s personal circumstances, the sentence did not properly meet the demands of general deterrence, nor did it reflect the paramountcy to be afforded to the protection of the safety of the community, in particular, children.
In relation to the offence of producing child exploitation material, bearing in mind that the offence was slightly unusual in that the respondent did not create the original image and the victim was not a child at the time of the offence, and notwithstanding that it involved numerous images of a member of the respondent’s family, which were cropped and magnified for the respondent’s own sexual gratification, we do not consider the sentence is manifestly inadequate or outside the permissible range for this offender or offence.
Permission to appeal
Notwithstanding our conclusion of manifest inadequacy in relation to the possession offence, it does not necessarily follow that permission to appeal should be granted. This Court will not intervene merely because an error has been demonstrated. The circumstances in which permission to appeal will be granted are confined to ‘rare and exceptional cases.’[11] The Crown will be granted permission to appeal if it is necessary to enable a 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 undermine public confidence in the administration of justice.[12]
As Doyle CJ said in R v Nemer:[13]
The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But 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, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
(Citations omitted)
[11] Everett v The Queen (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Green v R; Quinn v R (2011) 244 CLR 462 at [1] –[2] per French CJ, Crennan and Kiefel JJ; Cumberland v R (2020) 94 ALJR 656 at [4] –[6] , [33] per Bell, Gageler and Nettle JJ.
[12] R v Henderson (2023) 104 MVR 68 at [34] per Livesey P and David JA.
[13] (2003) 87 SASR 168 at [24] per Doyle CJ (with whom Prior J generally agreed).
In deciding whether to grant permission to appeal, the public interest in intervening in order to achieve one or more of the above objectives must be weighed against a defendant being twice vexed by facing the prospect of being re‑sentenced by an appeal court.[14] This consideration is of particular relevance in the present case as the respondent was subject to a relatively short non-parole period, which he has almost completed, and is eligible for release on parole in about two months.
[14] Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [13]-[14] per French CJ, Gummow, Hayne, Kiefel and Bell JJ; R v Yaroslavceff [2022] SASCA 123 at [29], [69] per Livesey P and David JA, [72] per Doyle JA, R v Harris [2023] SASCA 129 at [49] per .
Notwithstanding that the respondent will be twice vexed by a grant of permission, we consider that the sentence imposed for the offence of possessing child exploitation material was so disproportionate to the offending and the offender, and so far below the permissible sentencing range, that to allow it to stand would undermine public confidence in the administration of justice. It is also necessary to grant permission to appeal to maintain sentencing standards for offences involving child exploitation material following the recent amendments so as to deter like-minded offenders from committing similar offending and to thereby protect children from sexual exploitation.
Resentencing
On resentence, and having regard to the circumstances of the offending and the offender earlier outlined, for the offence of possessing child exploitation material (Count 1), we would commence with a sentence of two years and six months’ imprisonment. This reflects the large quantity of child exploitation material as well as the fact that some of the images fell within Category 1 and depicted particularly abhorrent images, and that the offending occurred in the context of the respondent searching and accessing child exploitation material for about five years. After allowing a reduction of 25 per cent for his plea of guilty, the sentence is one year, 10 months and 15 days’ imprisonment.
We would order the sentence to be served cumulatively on the sentence for the offence of producing child exploitation material of five months and four days, resulting in a head sentence of two years, three months and 19 days.
Having regard to the respondent’s personal circumstances, we would fix a non‑parole period of one year and four months’. The head sentence and non-period will be reduced by 24 days for the time served in custody prior to sentence, resulting in a head sentence of two years, two months and 25 days with a non‑parole period of one year, three months and seven days.
The sentence will be backdated to commence from 15 November 2023.
Orders:
1.Permission to appeal against sentence is granted.
2.The appeal is allowed.
3.The respondent is resentenced to imprisonment for two years, two months and 25 days with a non-parole period of one year, three months and seven days.
4.The sentence is backdated to commence on 15 November 2023.
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