Ryle v The King - [2025] SASCA 47

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
RYLE v THE KING
[2025] SASCA 47
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David)
8 May 2025
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - LEGISLATIVE HISTORY OF ACT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WHOLE ACT TO BE CONSIDERED
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - PURPOSIVE APPROACH
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against conviction and sentence.
The appellant was found guilty of one count of procuring a child to engage in, or submit to, a sexual activity, contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA). The prosecution case was that the appellant procured the complainant to engage in, or submit to, sexual activity by engaging in sexualised discussions on Facebook Messenger between 13 November 2022 and 28 November 2022.
The appellant was sentenced to a period of imprisonment of one year and six months with a non-parole period of nine months.
On the appeal against conviction, the appellant raised one issue, being whether knowledge that the person procured is under the prescribed age is an element of the first offence under s 63B(3)(a).
Held (by the Court) dismissing the appeal against conviction:
1.The first offence in s 63B(3)(a) does not require that the defendant know that the person being procured is under the prescribed age.

On the appeal against sentence, the appellant raised two issues:
1. whether the sentence imposed was manifestly excessive; and
2.whether the judge erred in her approach to the question of the appellant’s knowledge of the complainant’s age.

Held (by the Court) granting permission to appeal against sentence but dismissing the appeal:
1.It was open to the judge to reach the conclusion that she did about the appellant’s suspicion as to the complainant’s age.
2.The approach taken by the judge following the identification of an erroneous transcription of the Record of Interview was not tainted by process error. The judge clearly communicated her approach and reasoning.

3. The head sentence imposed by the judge was not outside the range open to her.
Criminal Law Consolidation Act 1935 (SA) s 63B; Legislation Interpretation Act 2021 (SA) s 17, referred to.
R v Clarke (2008) 100 SASR 363; Police v Kennedy (1998) 71 SASR 175; R v Athans [2021] SADC 1; R v Symons [2018] SASCFC 48; Athans v The Queen (No 2) [2022] SASCA 70; He Kaw Teh v The Queen (1985) 157 CLR 523; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Taylor v Public Service Board (NSW) (1976) 137 CLR 208; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; South West Water Authority v Rumble's [1985] AC 609; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70; SAN v The Queen (2020) 136 SASR 161; Lim Chin Aik v The Queen [1963] AC 160; Hackett v The Queen [2021] SASCA 32; Elias v The Queen (2013) 248 CLR 483; Markarian v The Queen (2005) 228 CLR 357; House v The King (1936) 55 CLR 499; Barbaro v The Queen (2014) 253 CLR 58; R v Pham (2015) 256 CLR 550, considered.

RYLE v THE KING
[2025] SASCA 47
Court of Appeal – Criminal: Kourakis CJ, Bleby and David JJA

THE COURT: On 6 August 2024, a judge of the District Court sitting alone found the appellant guilty of one count of procuring a child to engage in, or submit to, a sexual activity, contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).[1] On the prosecution case, the appellant procured the complainant to engage in, or submit to, sexual activity by engaging in sexualised discussions on Facebook Messenger between 13 November 2022 and 28 November 2022. The trial judge found that while the complainant did not, for the most part, engage in sexualised discussions, she responded to the messages from the appellant in circumstances where his continued focus was on sexualised messages.
[1] R v Ryle [2024] SADC 95.
On 17 October 2024, the judge sentenced the appellant to a period of imprisonment of one year and six months with a non-parole period of nine months. The appellant has appealed against his conviction and seeks permission to appeal against his sentence.
The issue arising on the conviction appeal is whether knowledge that the person procured is under the prescribed age is an element of the procuring offence pursuant to s 63B(3)(a), or whether it is sufficient to prove that the accused intentionally procured a person, and the person was a child.
Two issues arise on the sentence appeal. Ground 1 complains that the sentence imposed was manifestly excessive. Ground 2 complains that the sentencing judge erred in her approach to the question of the appellant’s knowledge of the complainant’s age.
Background
The appellant first contacted the complainant via Facebook Messenger on 14 November 2022. He was 47 years old. The complainant was 15. The complainant was in the care of the State. She resided in supported accommodation with carers and had been in contact with the youth criminal justice system. The appellant and complainant conversed online, via Facebook Messenger, over about two weeks. During these conversations, the appellant engaged in sexualised conversations with the complainant and, in doing so, procured her to submit to sexual activity.
Two police officers, Constable Baker and Senior Constable Kassebaum, gave evidence that they located the complainant in Allenby Gardens on 16 November 2022, and then in Morphett Vale on 27 November 2022, in response to two separate missing persons reports.
On 27 November 2022, Kassebaum located the complainant using data from the home detention bracelet the complainant was wearing at the time. Kassebaum and his colleague transported the complainant back to her home address. Kassebaum’s colleague located two plastic resealable bags containing suspected methamphetamine and cannabis. The complainant gave Kassebaum permission to look through her mobile phone. Kassebaum observed messages exchanged on the Facebook Messenger application between the complainant and a Facebook user ‘Mark Green’ from 14 November 2022 to 27 November 2022.
Kassebaum took photographs of the messages. The messages included the appellant repeatedly asking whether the complainant was ‘keen to fuck’ and requests for ‘sexy pictures’. There was discussion about the provision of drugs and cigarettes in exchange for engaging in sexual activity.
Another police officer, Detective Brown, investigated an occurrence report in relation to the complainant on 28 November 2022. She had previously met with the complainant in connection with missing persons reports and guardianship orders. Brown received, as part of her investigations, a bundle of photographs depicting the messages obtained by Kassebaum. Brown made several inquiries to identify the user ‘Mark Green’ and obtained two Facebook profile images. One of these images partially depicted a motor vehicle registration. Further inquiries revealed the appellant to be the owner of the motor vehicle.
Detective Brown and Detective Leary attended at the appellant’s residence on 29 November 2022. Brown observed a motor vehicle, similar to that depicted in the Facebook profile image, parked in the carport. The appellant was present. He provided Brown with his mobile phone. A preliminary search of the device revealed the Facebook profile ‘Mark Green’ to be installed on it. All communications except for one thread had been deleted from the Facebook Messenger application. Leary gave evidence that he conducted a review of the appellant’s mobile phone. He located photographs within the device’s image gallery application identical to those uploaded to the Facebook profile of ‘Mark Green’.
Brown interviewed the appellant. During the interview, the appellant said:
·he used the Facebook application using his profile ‘Mark Green’ (which was linked to his mobile phone);
·using that Facebook profile, he communicated with the complainant on the Facebook Messenger application only for a ‘couple of weeks’;
·he attended the complainant’s residence ‘just the once’ but did not meet her in person;
·he knew the complainant was subject to home detention conditions and resided with her carers;
·he ‘blocked [the complainant] and deleted her’;
·he had communicated with numerous females using the Facebook Messenger application.
The appellant denied touching the complainant or knowing her age. He said he thought she was 18.
The prosecution did not call the complainant to give evidence at trial. It relied on photographs of the messages exchanged on Facebook Messenger. On the appeal, it was not controversial that ‘Mark Green’ was a username of the appellant in the messages and that the complainant received the messages.
Counsel for the appellant at trial submitted that it was an element of the offence that the person must know the child is under the prescribed age. He submitted that the prosecution had not adduced evidence establishing this element and, consequently, there was no case to answer. He submitted that in the alternative, the offence provision required proof that, by reference to the circumstance known to an offender, the person was objectively under the prescribed age.
The judge ultimately rejected the defence submission and ruled that the offence was one of absolute liability.[2]
[2] [2024] SADC 59.
The judge found, on the basis of the text messages, that the appellant procured the complainant to submit to a sexual activity, contrary to s 63B(3)(a):[3]
For the most part [the complainant] does not engage in the sexualised discussions. She appears focussed on agreeing to as much as is necessary to secure cigarettes, cannabis or other drugs. She does however respond to the messages from Mark Green. I consider her minimal responses, and his continued focus on sexualised messages does constitute procuring her to submit to sexualised discussions. I am not satisfied that the accused procured Rebecca to engage in sexualised discussions.
(Emphasis in original)
[3] [2024] SADC 95 at [44].
The judge found the other elements of the offence proved, including that the appellant intended to procure the complainant to engage in or submit to sexual activity.[4] Consequently, she found the appellant guilty of the offence charged contrary to s 63B(3)(a) of the CLCA.
[4] [2024] SADC 95 at [43].
The appeal against conviction
As identified earlier, the issue arising on the appeal against conviction is whether it is an element of an offence in s 63B(3)(a) that the defendant must have known that the child procured was under the prescribed age. Section 63B of the CLCA provides:
63B—Procuring child to commit indecent act etc
(1)A person who—
(a)     incites or procures the commission of an indecent act by a child under the prescribed age in relation to that person; or
(b)     acting for a prurient purpose—
(i)causes or induces a child under the prescribed age in relation to that person to expose any part of his or her body; or
(ii)makes a photographic, electronic or other record from which the image, or images, of a child under the age of 17 years engaged in a private act may be reproduced,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 12 years;
(b)     for an aggravated offence—imprisonment for 15 years.
(2)Subsection (1) applies whether the acts alleged to constitute the offence—
(a)     occur in private or in public; or
(b)     occur with or without the consent of the child, or the child's parent or guardian.
(3)A person who—
(a)     procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or
(b)     makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 12 years;
(b)     for an aggravated offence—imprisonment for 15 years.
(3a)For the purposes of subsection (3), it does not matter if the victim is a fictitious person represented to the defendant as a real person.
(4)It is a defence to a charge under subsection (1)(a), (1)(b)(i) or (3) (other than where the defendant was in a position of authority in relation to the child) if the defendant proves that—
(a)     the child was, on the date on which the offence is alleged to have been committed, of or above the age of 16 years; and
(b)     the accused—
(i)was, on the date on which the offence is alleged to have been committed, under the age of 17 years; or
(ii)believed on reasonable grounds that the child was of or above the age of 17 years.
(4a)It is a defence to a charge under subsection (1)(a), (1)(b)(i) or (3) if the defendant was a person of a class described in subsection (6)(c) in relation to the child and proves that—
(a)     the child was, on the date on which the offence is alleged to have been committed, of or above the age of 17 years; and
(b)     the defendant—
(i)was, on the date on which the offence is alleged to have been committed, under the age of 18 years; or
(ii)believed on reasonable grounds that the child was of or above the age of 18 years.
(5)This section does not apply if the person and the child are legally married to each other.
(6)For the purposes of this section, a person is in a position of authority in relation to a child if—
(a)     the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or
(b)     the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or
(c)     the person provides religious, sporting, musical or other instruction to the child; or
(d)     the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or
(e)     the person is a health professional or social worker providing professional services to the child; or
(f)     the person is responsible for the care of the child and the child has a cognitive impairment; or
(g)     the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or
(ga)   the person is employed or providing services in a licensed children's residential facility (within the meaning of the Children and Young People (Safety) Act 2017), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972, or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or
(h)     the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
(7)For the purposes of this section, the prescribed age of a child in relation to a person is—
(a)     if the person is in a position of authority in relation to the child—18 years; or
(b)     in any other case—17 years.
Section 63B is contained in Division 11A of Part 3 of the CLCA. Part 3 is concerned with offences against the person. Division 11A is headed ‘Child exploitation material and related offences’. In R v Clarke,[5] Bleby J referred to his judgment in Police v Kennedy,[6] in which he traced the history of the predecessor offences which culminated, immediately before the enactment of s 63B, with the former s 58A.[7] That section created an offence where a person for prurient purposes incited or procured the commission by a child of an indecent act or caused or induced a child to expose any part of his or her body. Justice Bleby concluded, based on his examination of that legislative history:[8]
Thus, the whole of Div 11A had its origins in earlier versions of sections previously found in Div 11 of the Act. Division 11 covers a range of rape and other sexual offences. With the creation of Div 11A Parliament saw fit to assemble in the one Division child pornography and related offences as a discrete group of offences, the object and purpose of which, as will be seen, is the protection of children from sexual exploitation, degradation and humiliation. At the same time the penalties for those offences were greatly increased and all became indictable offences.
[5] (2008) 100 SASR 363.
[6] (1998) 71 SASR 175 at 178.
[7] R v Clarke (2008) 100 SASR 363 at [67]-[71].
[8] R v Clarke (2008) 100 SASR 363 at [71].
Division 11A was inserted by the Criminal Law Consolidation (Child Pornography) Amendment Act 2004 (SA). It came into force on 30 January 2005. It has been amended since then. Relevantly for the purposes of this appeal, the defence contained in s 63B(4), described in the Parliamentary materials as the ‘teenager defence’, was inserted only in 2011. The separate defence in s 63B(4a), which operates in a similar matter to that in s 63B(4), was inserted in 2021.
Parliament increased the maximum penalties for a range of child sex offences, including those in s 63B, in 2022. It was at this time that Parliament inserted s 63B(3a), providing that for the purposes of subsection (3), it does not matter if the victim is a fictitious person represented to the defendant as a real person.
It is clear enough that s 63B(3) creates three offences:
·procuring a child to engage in, or submit to, a sexual activity (s 63B(3)(a));
·making a communication with the intention of procuring a child to engage in, or submit to, a sexual activity (s 63B(3)(a)); and
·making a communication for a prurient purpose and with the intention of making a child amenable to a sexual activity (s 63B(3)(b)).
The appellant was convicted of the first of these offences.
This Court has not previously been required to identify the elements of this offence. In R v Athans,[9] David DCJ identified that the offence had three elements, which were not in dispute in that case:[10]
The offence of Procuring a Child to Engage in a Sexual Activity has three legal elements, each of which the prosecution must prove beyond reasonable doubt. They are:
1.The accused procured a person to engage in or submit to sexual activity. The term ‘sexual activity’ includes sending explicit photographs, such as a photograph of a penis, animations or sexual memes and engaging in discussions about them.[11]
2.The other person is a child under the prescribed age. In this case, the prescribed age is a person under the age of 17 as there was no allegation that the accused was in a position of responsibility in respect of any of the complainants.
3.The accused intended to procure a person to engage in, or submit to, sexual activity.
(Footnote in original)
[9] [2021] SADC 1.
[10] [2021] SADC 1 at [10].
[11] R v Symons [2018] SASCFC 48 per Kourakis CJ, Kelly J.

On appeal, this Court described the elements of the offence in the same terms.[12] Again, however, the elements of the offence were not in dispute, the issue being one of identity.
[12] Athans v The Queen (No 2) [2022] SASCA 70 at [61] (Livesey P, Kourakis CJ and Lovell JA agreeing).
There was no dispute about the applicable principles. There is a presumption that it is implied as an element of an offence that at the time when a person does the physical act, they either know the circumstances which make the doing of that act an offence or do not believe honestly and on reasonable grounds that the circumstances are such as to make the doing of the act innocent.[13] That presumption may be rebutted. In He Kaw Teh v The Queen,[14] Gibbs CJ articulated three considerations relevant to whether the presumption has been rebutted:[15]
1.the words of the statute creating the offence
2.the subject matter with which the statute deals, including the conduct to be regulated, the impact of the offending on the community, the seriousness of the conduct and whether Parliament would have intended that a person be punished where they had no intention to do anything wrong and no knowledge that they were doing so; and
3.whether rebutting the presumption would assist in enforcing the statutory scheme.
[13] He Kaw Teh v The Queen (1985) 157 CLR 523 at 528-529, 532 (Gibbs CJ); 582 (Brennan J).
[14] (1985) 157 CLR 523.
[15] He Kaw Teh v The Queen (1985) 157 CLR 523 at 529-530.
These three considerations are a manifestation, in a particular context, of the contemporary approach to statutory interpretation subsequently articulated in Project Blue Sky v Australian Broadcasting Authority:[16]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute[17]. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”[18]. In Commissioner for Railways (NSW) v Agalianos[19], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed[20].
(Footnotes in original)
[16] (1998) 194 CLR 355 at [69].
[17] See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ.
[18] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, “in the context of the legislation read as a whole”.
[19] (1955) 92 CLR 390 at 397.
[20] Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J.
As the trial judge noted, the wording of the first offence created by s 63B(3)(a) does not expressly provide that knowledge as an element of the offence. This may be contrasted with the wording of the second and third offences in s 63B(3), which mandate, respectively, ‘the intention of procuring a child’ and ‘the intention of making a child … amenable to a sexual activity’. Those elements of intention are coupled with the act of making a communication, whereas the first offence is concerned with the act of procuring.
This difference between the offences may be compared with the words of the offence in s 63B(1)(a), which uses language similar to that of the offence presently under consideration:
63B—Procuring child to commit indecent act etc
(1)A person who—
(a) incites or procures the commission of an indecent act by a child under the prescribed age in relation to that person; or
…
is guilty of an offence.
In R v Clarke, Doyle CJ engaged in an extensive analysis of whether s 63B(1)(a) required the prosecution to prove that the accused did not have an honest and reasonable belief about the age of the child, concluding that it did not.[21] Nevertheless, his Honour also considered it ‘too sweeping’ to say that the element of age always attracts absolute liability in Division 11A.[22]
[21] R v Clarke (2008) 100 SASR 363 at [18]-[59].
[22] R v Clarke (2008) 100 SASR 363 at [37].
We note the observation of Doyle CJ in R v Clarke[23] as to the significance of not including any provision about knowledge of the age of the child:[24]
Section 63B(3) clearly includes a mental element as to some aspects of the offence created by that provision, and the same can be said as to s 63B(1)(b). This provides support for an argument that the silence of Parliament to which I have just adverted indicates that Parliament intended not to require proof that the accused person did not honestly and reasonably believe that the person the subject of the offence was a child.
[23] (2008) 100 SASR 363.
[24] R v Clarke (2008) 100 SASR 363 at [21].
Doyle CJ considered that the absence of any defence of honest and reasonable belief that the victim was of an age that, if the belief was correct, no offence would have been committed, was equivocal.[25] In this regard, he referred to (among other authorities), the decision of the New South Wales Court of Criminal Appeal in CTM v The Queen.[26] The relevant offence provision in that case was s 66C(3) of the Crimes Act 1900 (NSW), which made it an offence for a person to have sexual intercourse with a person aged between fourteen and sixteen years. An amendment to provide for the equal treatment of sexual offences against males and females also repealed s 77(2), which had provided that it was a defence to an offence under s 66C if the accused reasonably believed the person was of or above sixteen years old.
[25] R v Clarke (2008) 100 SASR 363 at [34].
[26] (2007) 171 A Crim R 371.
The Court of Criminal appeal held that the repeal of s 77(2) indicated a legislative intent that an honest and reasonable mistake would be irrelevant to a charge of an offence under s 66(3).[27] However, on appeal, while the High Court accepted that there were powerful arguments in support of this conclusion in the face of further legislative silence, it held:[28]
There is, however, what appears to us to be a compelling argument to the contrary. It is that foreshadowed by Cave J in R v Tolson, and it concerns the relationship between the courts and Parliament.
The common law principle in question reflects fundamental values as to criminal responsibility. The courts should expect that, if Parliament intends to abrogate that principle, it will make its intention plain by express language or necessary implication. We would, therefore, construe the legislation in the light of the principle of criminal responsibility stated at the outset of these reasons. An honest and reasonable belief that the other party to sexual activity is above the age of sixteen years is an answer to the charge of a contravention of s 66C(3).
[27] CTM v The Queen (2007) 171 A Crim R 371 at [139] (Howie J, Hodgson JA and Price J agreeing).
[28] CTM v The Queen (2008) 236 CLR 440 at [34]-[35].
In our view, Parliament has made its intention clear by necessary implication with respect to the offence under consideration. As already mentioned, Parliament has amended the section on several occasions since R v Clarke was decided in 2008, by insertion of the defences in subsections (4) and (4a), as well as the ‘fictitious person’ provision in subsection (3a).
Subsections (4) and (4a) provide important context to the interpretation of the first offence provided for in subsection (3)(a). First, and relevant to the consideration of purpose discussed below, these subsections apply where the child was of or above the age of 16 years and 17 years (where the accused was in a position of authority), respectively. That is, the reasonable belief provided for in each case is only exculpatory when the child is the oldest age, in years, still capable of rendering the conduct an offence. Parliament has determined that where the child is at all younger than the ages specified in these subsections, a reasonable belief about their age is insufficient to exculpate the accused. This highlights the premium placed on the protective purpose of the offence provisions.
Secondly, and more immediately, it is difficult to see that these defences would have any work to do if knowledge was an element of the first offence in s 63B(3)(a). Senior counsel for the appellant was unable to identify the work they would have to do on such a construction.
Senior counsel observed, however, that these defences were inserted in 2011. She submitted that they could not be used ‘retrospectively’ as a contextual indicator to assist with Parliament’s intention in relation to the mental element of the offence. The difficulty with this submission is that it assumed that Parliament’s intention is set in stone from the time of the initial enactment of the offence. There would be a recognised difficulty in deploying sub-ss (4) and (4a) as an aid to interpretation of 63(3)(a) as it applied to charged acts committed before those later subsections were inserted.[29] However, the task of this Court is to read the Act as amended and as it applies on the dates of the charged events, and on the premise that every provision of the Act is speaking:[30]
[29] See, e.g., Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70.
[30] Legislation Interpretation Act 2021 (SA) s 17.
17—Act or instrument deemed always speaking
An Act or a legislative instrument will be considered as speaking at all times, and every provision of an Act or a legislative instrument, whether expressed in the present or the future tense, will be applied to the circumstances as they arise, so that effect may be given to each provision according to its spirit, true intent and meaning.
The offence provision must be read in its present context, which includes the existence of the defences in sub-ss (4) and (4a). These subsections are powerful contextual indicators that knowledge of the age of the child is not an element of the first offence in s 63B(3)(a).
Subsection (3a), inserted in 2022, has a different character. This provides that for the purposes of subsection (3), it does not matter if the victim is a fictitious person represented to the defendant as a real person. It is difficult to see how this subsection could operate on the first offence in subsection (3)(a), given the requirement in that case that a child be ‘procured’. However, it has a clear operation in respect of the second and third offences in subsection (3).
It is readily apparent that the purpose of s 63B is to provide extended protection to children from harm and risks of harm caused by a range of activities, not amounting to offences against the person under Division 11, but which come under a broader description of sexual exploitation, degradation and humiliation. Chief Justice Doyle described the purpose of s 63B(1) in such terms in R v Clarke,[31] observing that there can be ‘no doubt about the seriousness of the evil at which the relevant legislative provisions are aimed’.[32]
[31] (2008) 100 SASR 363 at [18]-[19].
[32] (2008) 100 SASR 363 at [19].
Those comments are just as applicable to the mischief with which s 63B(3) is concerned. In SAN v The Queen,[33] Kourakis CJ observed of s 63B(3)(b) that:[34]
… the mischief of the section is the exposure to communications which may make a child vulnerable to predatory sexual conduct by adults. It is the content of the communication, or series of communications, which harms a child, not the additional secret intentions of the offender.
[33] (2020) 136 SASR 161.
[34] SAN v The Queen (2020) 136 SASR 161 at [31].
The mischief the concern of the first offence in s 63B(3)(a) is the fact of procuring a child to engage in, or submit to, a sexual activity. The appellant submitted that the absence of an element of knowledge of the age of the child would, however, create a class of ‘luckless victim’, to use the words of the Privy Council in Lim Chin Aik v The Queen.[35] Senior counsel for the appellant asked rhetorically what a person engaged in online chat was supposed to do, being assured that their correspondent is 17 or 18 years old, other than meeting the person and ascertaining objectively their age.
[35] [1963] AC 160 at 174.
This prospect does not offer any meaningful qualification to the manifest purpose of protecting children from the kind of predation the subject of this offence. The offence is clearly concerned primarily with procuring children online. The offences in s 63B(3), as with those the subject of s 63B(1), are a legislative response to the relentlessly democratic reach of the Internet to what has now long been recognised as a sector of society that is exposed and vulnerable to sexual predation. The statement of Bleby J in R v Clarke[36] about the absolute liability imposed by s 63B(1) is equally apposite to s 63B(3):
As I have already observed, absolute liability for these offences will not punish accidental behaviour. The behaviour in each case can be avoided. Further steps than merely relying on what the offender was told or observed can be taken in order to verify a person’s age. If the offender chooses not to take those steps, it will be in the knowledge of the possibility that the person is in fact under the age of 16. The imposition of absolute liability for these offences would encourage greater vigilance to prevent the commission of the prohibited acts, and would therefore assist in enforcing the provisions of Div 11A. It would not, as was argued by the appellant, create a class of what were described as “luckless victims”.
[36] (2008) 100 SASR 363 at [103].
Actions capable of amounting to this offence involve a series of deliberate decisions by a person who procures another to engage in or submit to sexual activity. This Act places a heavy responsibility on that person to ensure that the object of their attention is not under the prescribed age. That is an unsurprising and rational response by Parliament to a further emergent risk to children. A requirement of proof of knowledge of the age of the child would hollow out the response to an extent that would wholly undermine the manifest purpose of this legislative response. To conclude that the presumption (that the defendant must know that the act of procuring is criminal) is rebutted clearly assists in enforcing the statutory scheme.[37]
[37] He Kaw Teh v The Queen (1985) 157 CLR 523 at 529-530 (Gibbs CJ).
The judge’s conclusion that the first offence in s 63B(3)(a) does not require that the defendant know that the person being procured is under the prescribed age was both consistent with the scheme of the broader section and the surrounding provisions. It is also clearly correct as a matter of statutory interpretation. We dismiss the appeal against conviction.
The appeal against sentence
As identified earlier, the judge sentenced the appellant to imprisonment for 18 months with a non-parole period of nine months. Ground 1 of the appeal against sentence complains that the head sentence and non-parole period were manifestly excessive. Ground 2 complains that the sentencing judge erred in her approach to the question of the appellant’s knowledge of the complainant’s age.
The appellant submitted to the judge that he should be sentenced on the basis that he did not know the complainant was below the age of 17.
The judge based the findings in her sentencing remarks on the text messages. She found that on 16 November 2022, the appellant had a face-to-face meeting with the complainant. Shortly after that, the appellant expressed his reluctance about ‘hook[ing] up’, on the basis that the complainant was ‘a bit too young’.
Before this meeting, the appellant messaged the complainant asking her to show him ‘what a 17-year-old pussy’ looks like. The judge considered that the complainant’s requests for tobacco must have raised the appellant’s suspicions about why she could not buy it herself. She noted that the appellant knew the complainant lived with carers and was subject to a 9:00 pm curfew. She did not draw any inference about how the complainant may have appeared, physically, to the appellant during their face-to-face meeting. The judge concluded:
I am unable to conclude that you positively knew [the complainant] was under-age, that is under 17, but I am satisfied beyond a reasonable doubt that you had a solid suspicion that she was. Holding this solid suspicion, you chose not to make inquiries and you chose to continue your communications. I cannot conclude that you behaved with no knowledge that what you were doing had the potential to corrupt a child.
I am also satisfied that it was very clear to you that [the complainant] was a very vulnerable young person. She was highly focused on obtaining drugs, using drugs and getting tobacco. You were a mature man with much more life experience and you must have been well aware of the vulnerabilities that you were exploiting. You said as much when you told her you were reluctant about taking advantage of her, given what she had been through.
The judge ultimately sentenced the appellant on the basis that he ‘held a solid suspicion that [the complainant] was under 17’ and that he made no attempt to clarify the issue. The appellant knew the complainant’s social circumstances made her especially vulnerable.
The judge accepted that the appellant’s conduct was out of character and arose from life circumstances which led to his use of drugs and some ‘very poor decision-making’. She accepted that he voluntarily stopped communicating with the complainant. She also accepted that he was contrite.
The judge sentenced the appellant on the basis that he procured the complainant to submit to sexualised conversations. She held it was relevant that they had met up at least once as a consequence of those conversations, but did not sentence the appellant on the basis that he procured the complainant for any contact offending. On this basis, she observed that his offending was at the lower end of the scale.
The judge’s approach to the question of the appellant’s knowledge of the complainant’s age
It is convenient to commence with Ground 2, as the appellant did in submissions. This complaint concerns the judge’s finding that the appellant had a ‘solid suspicion’ that the complainant was under 17. In order to understand the complaint, it is necessary to set out certain findings of the judge relevant to the question of the appellant’s knowledge or otherwise about the complainant’s age, prior to her making the concluding remarks set out above.
The judge found beyond reasonable doubt that the appellant and complainant had a face-to-face meeting on 16 November 2022, following which the appellant expressed reluctance about ‘hook[ing] up’, on the basis of his belief that she was ‘a bit too young’. That meeting served as a pivot point in the judge’s findings about the appellant’s belief as to the complainant’s age:
I cannot draw any inference from you having seen [the complainant] face-to-face about how she physically appeared at that meeting.
Photos of [the complainant] taken in October and December 2022 were tendered during the course of the trial. I am not able to draw any firm conclusion from those images about how old she might have appeared at a meeting with you. The photos are taken of [the complainant] without make-up and in casual clothes. There is no evidence about how she appeared when you met one another. I take into account that it can be very difficult to estimate accurately the age of a young person, especially if they are wearing make-up.
…
The prosecution pointed to other circumstances about [the complainant] that were known to you. They pointed to the shorthand language [the complainant] used, and your affectionate references to her as ‘baby doll’ or ‘fuck doll’. I do not find those references of any particular assistance in proving you knew she was under or over 17. You knew that [the complainant] lived with carers and had a curfew of 9 p.m. You knew she was wearing an ankle bracelet that monitored her whereabouts.
Her requests of you to buy her tobacco must have raised your suspicions about why she could not buy it for herself.
When you were interviewed by police, you denied that you had ever met up with [the complainant] face-to-face. You told police you thought [the complainant] was 18. You expressed surprise when told she was only 15, and you said you would never have spoken to her in the way that you did had you known of her age.
As I have said earlier, I reject the submission that you did not meet face-to-face and, on the face of the messages, at one point at least, you described [the complainant] as 17 years of age.
When interviewed, you agreed with the police that there were warning signs that [the complainant] was under-age and you said at least at one point in your communications with her you thought that she was under-age.
I am unable to conclude that you positively knew [the complainant] was under-age, that is under 17, but I am satisfied beyond a reasonable doubt that you had a solid suspicion that she was. Holding this solid suspicion, you chose not to make inquiries and you chose to continue your communications. I cannot conclude that you behaved with no knowledge that what you were doing had the potential to corrupt a child.
I am also satisfied that it was very clear to you that [the complainant] was a very vulnerable young person. She was highly focused on obtaining drugs, using drugs and getting tobacco. You were a mature man with much more life experience and you must have been well aware of the vulnerabilities that you were exploiting. You said as much when you told her you were reluctant about taking advantage of her, given what she had been through.
(Emphasis added)

The judge then proceeded in the manner recorded earlier. After announcing the sentence, but before its formal recording, counsel for the appellant raised that the ‘admission’ in the record of interview that the appellant thought the complainant was under age was, in fact, a denial that had been transcribed wrongly. The judge adjourned the hearing to rewatch the record of interview. On resuming, she found that the appellant said that he had not thought that the complainant was under age, that is, that the relevant words were a denial, not an admission.
The judge proposed to return to that part of the sentencing remarks, correct what she had said and explain the effect of the correction. She gave counsel an opportunity to make submissions about that course. Counsel did not object. The judge then revisited her remarks, starting with the passage, quoted above, commencing, ‘When you were interviewed by police, you denied that you had ever met up …’. She repeated that and the next paragraph and then substituted the following in place of the passage beginning with the first highlighted paragraph quoted above:
You agreed with the police that there were warning signs that [the complainant] was under‑age. In my previous remarks, I said this: ‘You said at one point you did think she was under-age.’
I have now watched the original exhibit, having been reminded that there was a dispute about exactly what was said and whether the transcription was correct.
Having watched the original exhibit, I am satisfied that the transcription is incorrect, or at least misleading. You say words to the effect of: ‘I haven’t felt – I haven’t thought at one stage she was under-age.’
The words and the tone of your voice make it very clear to me that you are denying the proposition that you knew, at any stage, that [the complainant] was under-age. I am satisfied that what you said was a denial, rather than an admission of thinking she was under-age at any point.
In my view, that amendment to the factual basis does not bear on my conclusion that you met face-to-face.
Given my conclusion is, in terms of your state of mind about her age, that you did not positively know, but you had strong suspicions about her age, whether or not you made that admission to knowing at one point does not undermine that conclusion; that is, if I consider the matter on the basis that in fact you denied during your record of interview at any stage knowing that she was under-age, that does not undermine my conclusion that you did not positively know, but you had strong suspicions based on all of the circumstances that you were aware of.
(Emphasis added)
The judge then repeated the penultimate paragraph of the long passage quoted earlier.
The effect of this revisiting of the sentencing remarks was that the appellant’s denial, rather than admission, that he ‘thought [the complainant] was under-age’ did not affect the judge’s conclusion that he nonetheless held a ‘solid suspicion’ that she was.
The appellant complained that this approach to revisiting the facts had the effect of causing the judge to consider the evidence relevant to his state of mind in a compartmentalised and piecemeal fashion, after having made findings adverse to him in this regard. He submitted that it was necessary for the judge to have gone back and considered the entire matrix of evidence afresh. He also submitted that it was necessary for the judge to reject the denial as reasonably possibly true, and to explain that direction, rather than simply to consider whether it caused her to doubt the conclusion that she had previously reached.
As to the first of these complaints, we do not think it can be said that it was not open to the judge to proceed in the fashion that she did. Sentencing is a communicative process, and the judge’s corrected approach clearly communicated the findings and conclusions she brought to bear on her consideration. It was open to her to explain, in this shortened form, the effect of a correction to the facts as she found them. This was in circumstances where the judge had invited submissions on how to proceed, following the correction.
The complaint that it was necessary for the judge to reject the denial as reasonably possibly true has a different character. In assessing this complaint, however, it is important to take care in characterising the judge’s findings. The judge accepted that the contested words constituted a denial. However, that begs the question of what the appellant was denying. The judge made a finding about this. The final paragraph of the amended remarks, highlighted in the quoted passage set out above, makes it clear that the judge found that the denial was a denial that the appellant knew the complainant was under age, not that he suspected this to be the case. The judge then reiterated her acceptance that the appellant did not positively know it.
The matters that the judge then relied on to support her conclusion about the appellant’s ‘solid suspicion’ included that the appellant and complainant had met in person, the content of the messages which included the complainant’s request for tobacco, and the appellant’s knowledge of the complainant’s circumstances of living with carers, having a curfew and wearing an ankle bracelet. Understandably, these matters were not enough to prove knowledge. However, we do not accept the appellant’s submission that they were ‘intractably neutral’ on the question of whether it was open to find that the appellant had a solid suspicion about the complainant’s age.
It was open to the judge to reach the conclusion that she did about the appellant’s suspicion, relying on these matters in all the circumstances of the engagement between the appellant and complainant. Further, we do not accept that the approach taken by the judge, following the identification of the erroneous transcription, was tainted by process error. While the circumstances were not ideal, the judge clearly communicated her approach and reasoning.
We grant leave to appeal on Ground 2 but dismiss the ground.
Whether the head sentence and non-parole period are manifestly excessive
The approach to be taken by this Court on a complaint of manifest excess was not disputed. As this Court explained in Hackett v The Queen:[38]
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case.[39] The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence.[40] Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed.[41] A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice.[42] It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[43] To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.[44]
(Footnotes in original)
[38] [2021] SASCA 32 at [8].
[39] Elias v The Queen (2013) 248 CLR 483.
[40] Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[41] House v The King (1936) 55 CLR 499.
[42] Barbaro v The Queen (2014) 253 CLR 58 at [61] (Gageler J).
[43] Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[44] R v Pham (2015) 256 CLR 550 at [56] (Bell and Gageler JJ).
The maximum sentence for the basic offence under the first part of s 63B(3)(a) is 12 years’ imprisonment. As the judge noted, this was lower-order offending in the scheme of what is contemplated by the sub-section. The judge imposed a head sentence of 18 months, with a non-parole of nine months, that is, 50 per cent. As a proportion of the head sentence, the non-parole period was lenient, reflecting the judge’s findings about the appellant’s contrition and other personal circumstances, described earlier. However, the challenge is to both the head sentence and the non-parole period.
The appellant essayed the relevant factors comprehensively in submissions on the appeal. In addition to the matters described above, he emphasised that he had no relevant antecedent history. He had been in a relationship with his wife for 27 years and married for 18 years. The appellant and his wife have two children. The appellant continued to enjoy the support of his wife. His wife’s reference indicated that the offending was atypical and occurred against the background of the deterioration of the appellant’s personal life.
As to this, the appellant had a strong work history which had enabled him to buy three investment properties and employ several people. Injury forced him from his business, but he continued to do maintenance work. The loss of his employment caused financial stress, requiring the sale of an investment property. The appellant turned to drugs and sexualised discussions with the complainant as maladaptive coping mechanisms. Since his arrest and before sentence, he had ceased drug use, not reoffended and continued to work as much as he was able. He and his wife rebuilt their relationship. He had positive prospects of rehabilitation.
The appellant submitted that, even accepting the judge’s conclusion about his ‘solid suspicion’ as to whether the complainant was under the prescribed age, this was a different state of mind than knowledge. That bore on his culpability and risk of re-offending.
Further, the appellant voluntarily ceased communicating with the complainant. He submitted that this demonstrated that he had undergone an internal reckoning, in which he decided positively not to pursue that contact further. This, the appellant submitted, was an important indicator of the diminished requirements of personal deterrence and protection of the community.
There was much in the appellant’s personal circumstances to support the proposition that he was contrite and had good prospects of rehabilitation. The offending occurred in circumstances where he was under considerable stress. Nevertheless, having regard to all these matters, and that the offending was of a relatively low order when considering the breadth of offending contemplated by the statutory proscription, the offending was still serious. The appellant largely initiated and pursued the conversations, which were of an explicit nature and to which the complainant, who was in a highly vulnerable situation, submitted. The appellant was aware of several external manifestations of those vulnerabilities that also contributed to the suspicion that the judge found he held.
As the respondent submitted, even after the appellant told the complainant that he thought she was ‘a bit too young for me’, and she said she still wanted to engage in sexual intercourse, he said he would ‘think about it’.
There were many competing factors requiring consideration in the sentencing exercise. In addition to all the matters discussed above, general deterrence remained a significant consideration. The appellant pointed to two recent instances where the District Court had imposed a bond in respect of the offence of ‘procuring’ contrary to s 63B(3)(a).[45] These were of limited assistance. While a different judge may have sentenced differently in the present case, we are not persuaded that the head sentence at which the judge arrived was outside the range open to her. The non-parole period, representing 50 per cent of that 18-month head sentence, was relatively lenient.
[45] R v Bidgood, DCCRM-23-026285, 30 September 2024; R v Marshall, DCCRM-24-010401, 18 November 2024.
We grant permission to appeal on Ground 1 but dismiss this ground also.
Conclusion
We dismiss the appeal against conviction. We grant permission to appeal on both grounds of appeal against sentence but dismiss that appeal also.