Snodgrass v The Queen - [2021] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
SNODGRASS v THE QUEEN
[2021] SASCFC 20
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, the Honourable Justice Doyle and the Honourable Justice Hughes)
1 April 2021

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
The appellant seeks to appeal against his sentence and non-parole period on the basis that they were both manifestly excessive, insufficient concurrency had been applied between sentences, the principle of totality was inadequately considered, and the sentencing Judge erred by declining to exercise the discretion in s 54(2) of the Sentencing Act 2017.
The appellant had pleaded guilty to 147 counts of indecent filming of adults, 7 counts of indecent filming of minors, 50 counts of aggravated producing child exploitation material, 5 counts of aggravated possession of child exploitation material, 5 counts of possession of child exploitation materials, 1 count of aggravated indecent assault and 1 count of assault. The sentencing Judge imposed 9 separate sentences, one of which was to be served concurrently with another; the remainder to be served cumulatively. The total sentence imposed was 10 years, 3 months and 15 days’ imprisonment with a non-parole period of 8 years, 2 months and 18 days.
Held, per Hughes J (Peek and Doyle JJ agreeing) granting permission to appeal and dismissing the appeal:
1. No error was disclosed in the sentencing Judge’s approach of grouping charges based on the type of offending and the relevant sentencing discount available. It was open to the sentencing Judge to apply partial concurrency within the sentencing groups to achieve an appropriate sentence.
2. The sentencing Judge adequately considered the totality of the sentence and it could not be said that the sentence was so ‘crushing’ as to warrant a further reduction.
3. The sentence imposed was appropriately lengthy in light of the particular features of the offending particularly the gross breaches of trust in respect of patients, sexual partners and his daughters.
4. The sentencing Judge did not err in finding that the appellant’s personal circumstances were not exceptional so as to exclude him from the operation of the serious repeat offender provisions.
Sentencing Act 2017 (SA) s 32A, s 38(2ba), s 26, s 53, s 54, s 57; Criminal Law (Sentencing) Act 1988 (SA) s 10C, referred to.
R v Horstmann [2010] SASC 103; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; R v Cramp [2010] SASC 51; (2010) 106 SASR 304; R v E, AD [2005] SASC 332; (2005) 93 SASR 20; R v Turvey [2017] SASCFC 28; (2017) 127 SASR 425; R v De Leeuw [2015] NSWCCA 183; R v Parenzee [2007] SASC 316; (2007) 101 SASR 456; R v Barmby [2007] SASC 354, applied.
Attorney-General v Tichy (1982) 30 SASR 84; R v Reiner (1974) 8 SASR 102; R v Smoker [2016] SASCFC 114; (2016) 126 SASR 201; McIntyre v The Queen [2020] SASCFC 101; R v Turvey [2018] SASCFC 68; R v Cecchin [2017] SASCFC 109; R v Ohmer [2011] SASCFC 44; R v Riddle [2012] SASCFC 82; (2012) 113 SASR 314; R v Skinner [2016] SASCFC 106; (2016) 126 SASR 120, discussed.
R v Skinner [2004] HCA 15; (2004) 78 ALJR 616; R v Padberg [2010] SASC 189; (2010) 107 SASR 386; R v Rossi (1988) 142 LSJS 451; R v Place [2002] SASC 101; (2002) 81 SASR 395; R v Bartell [2008] SASC 289, considered.

SNODGRASS v THE QUEEN
[2021] SASCFC 20

Court of Criminal Appeal: Peek, Doyle and Hughes JJ

PEEK J: I would dismiss the appeal. I agree with the reasons given by Hughes J.
DOYLE J: I agree with the reasons of Hughes J. For the reasons her Honour gives, I too would grant permission to appeal but dismiss the appeal.
HUGHES J: The appellant was a chiropractor. He pleaded guilty to over 200 offences over a period of about seven years. The majority of the offences concerned indecently filming patients in states of undress without their knowledge. A Judge of this Court sentenced the appellant to imprisonment for 10 years, 3 months and 15 days, backdated to commence on 10 October 2017. A non-parole period of 8 years, 2 months and 18 days, being four-fifths of the head sentence, was imposed following the finding that the appellant is a serious repeat offender whose circumstances were not such as to exclude him from the operation of the serious repeat offender provisions.
He appeals against his sentence.
The appellant contends that:
(1) The head sentence and non-parole period are manifestly excessive;
(2)The sentencing Judge failed to apply sufficient concurrency as between the sentences imposed;
(3)The sentencing Judge failed to consider and properly apply, or apply at all, the principle of totality; and
(4)The sentencing Judge erred in declining to find that the circumstances were exceptional such as to enliven the exception to the serious repeat offender provisions.
The Court determined that it would be appropriate for permission to be considered contemporaneously with the substantive appeal.
For the reasons that follow, permission should be granted but none of the grounds of appeal is made out and the sentence is affirmed.
Overview
The charges to which the appellant pleaded guilty were: 147 counts of Indecent Filming of an Adult; 7 counts of Indecent Filming of a Minor; 50 counts of Aggravated Producing Child Exploitation Material; 5 counts of Aggravated Possessing Child Exploitation Material; 5 counts of Possessing Child Exploitation Material; 1 count of Assault; and 1 count of Aggravated Indecent Assault.
Personal circumstances
The appellant grew up on a farm and had a stable and untroubled childhood. He gained a tertiary qualification after school and became a chiropractor. He married a woman he had known since his school days, and they had what he described as a happy marriage with three children. The appellant worked as a chiropractor for periods of years successively in two practices before opening his own practice. It was busy and successful and he employed staff. His clients included adults and children and in some cases, multiple members of the same family. He had no prior convictions and was well-regarded amongst his peers.
In 2007, when the appellant was 39 years old, his wife died of cancer. He struggled to cope with his own grief and that of his children, who were teenagers at the time. He commenced another romantic relationship soon after his wife died and it lasted 18 months. In 2009, his father died. The appellant commenced another short-lived relationship with a woman who lived interstate but the distance proved too much of an obstacle. Thereafter, the appellant began the offending behaviour of filming patients, accompanied by prolific dating and successive brief relationships and what the appellant described as a descent into sex addiction. Meanwhile, his two elder children each experienced significant mental health conditions associated with the grief of the death of their mother. The appellant began to experience financial difficulty and sold the equestrian property he had bought to escape the sadness associated with the marital home.
Brief factual summary of the offending
The basis of the appellant’s plea was that he had, in about 2010, placed a pen containing a hidden camera in the curtained change room he provided for his patients to use immediately prior to and after a chiropractic consultation at his consulting rooms. The hidden camera enabled him to film female patients as they undressed in the change room to put on the gown supplied by the practice. The appellant manually turned the camera on and off for each occasion of filming. The pen was replaced with a clock radio containing a hidden camera in around 2015 which afforded the appellant a better opportunity to view the girls and women in states of undress. In this manner, he filmed over 200 individuals getting undressed and changing into a gown in the change room of his practice. The victims were all females, aged between 11 and 60. The films depicted the women’s and girls’ bare breasts and underwear as they changed.
This offending occurred over the period of 2007 to 2017.
On at least one occasion in that period, the appellant filmed himself massaging a patient’s upper legs during a consultation, without the patient’s knowledge or consent.
The appellant transferred the videos he had created to computers he kept at his home where he lived with his teenage children. He named each file in a manner that conveyed some information to him about the contents. These labels did not refer to the patient names but to descriptions of their bodies.
The appellant did not distribute the material to others.
The appellant also engaged in sexual relationships with several adult patients, and with women who were not his patients, and covertly filmed their sexual encounters which occurred at his home and kept the video records of these encounters.
The appellant also filmed teenage girls who were friends of his daughter, without their knowledge, when they visited his daughter at his house. He filmed them getting undressed by the use of covert filming equipment installed in the bathroom of his home.
The appellant also downloaded and stored child exploitation material from the internet.
The offending was uncovered when a patient became suspicious of the device containing the camera in the change room and hid it before confronting the appellant. The appellant assaulted the patient in the course of his attempt to recover the equipment which he wrongly believed she had placed in her handbag. The matter was reported to police and the offending described above was revealed when the appellant’s office, home and devices were searched.
The sentence
Having had regard to various psychiatric evidence, the sentencing Judge found that the appellant could not be said to be experiencing a disorder that had the effect that he was unable or unwilling to control his sexual instincts. Therefore, at the time of sentencing, her Honour found that it was not appropriate to make an order detaining the appellant in custody until further order pursuant to s 57 of the Sentencing Act 2017 (SA). That aspect of the decision is not challenged.
The sentencing Judge approached the sentence in the following way.
Her Honour set out the circumstances that led to particular offending being characterised as aggravated for the purposes of sentencing. These were the features associated with the nature of the relationship between the appellant and the victims of his offending. Her Honour described the offending and the cohort of victims, noting that:[1]
The majority of your victims were patients, some were also employees at your practice. Other victims were close family friends, including children that you had known and, in some instances, had treated from birth. One of the patients you filmed was legally blind … One of the youngest of the females filmed was 11 years old…
[1] Sentencing Remarks in SCCRM-18-294 & SCCRM-18-295 dated 7 February 2020 at [14]-[16] (Bampton J).
Her Honour provided examples of the manner in which the appellant had named the videos including the use of descriptors as identifiers such as “giant jugs”, “hot redhead”, “new boobs” (in relation to the images of an 11 year old), and “pussy”.
Her Honour noted that there were statute-barred allegations not taken into account, and that there were multiple events in respect of individual victims but that the prosecution had laid only one charge for most victims irrespective of the number of films involving a particular victim.[2] Her Honour referred to the fact that the appellant commenced sexual relationships with several patients and filmed patients during acts of purported treatment.
[2] Ibid at [24] (Bampton J).
The sentencing remarks describe, using the standard classification tool, the child exploitation material which was downloaded by the appellant between 8 July 2009 and 29 June 2014.[3] Her Honour spoke globally about the many victim impact statements that had been tendered and the “shame, anger and embarrassment” they experienced and the ongoing effect the offending has had upon many of them.
[3] Ibid at [27] (Bampton J).
Her Honour referred to the conclusions she had reached regarding whether the appellant should be treated as a serious repeat offender, which will be considered in more detail later in this decision.
After canvassing the appellant’s personal circumstances including his lack of any prior convictions, the fact that he had expressed remorse and sought to apologise to victims, and various character references tendered on his behalf, the sentence was described. Her Honour proceeded on the basis that the appellant was entitled to receive up to a 30 per cent discount on the sentence, pursuant to s 10C of the Criminal Law (Sentencing) Act 1988 (SA), except in respect of counts 213-216. In respect of those counts, and the offence of indecent filming in SCCRM-18-294, a 40 per cent discount was applicable. No challenge has been made to this analysis.
Her Honour noted that the appellant had been in custody for 8 days and on home detention from 4 August to 10 October 2017.
Her Honour imposed 9 sentences. For the purposes of the discussion on appeal it is convenient to number and order them as follows, though it does not represent the order in which they were dealt with in the sentencing remarks:
1.143 counts of indecent filming of adults. The maximum penalty for each count was $10,000 or 2 years’ imprisonment. The sentence starting point was 7 years. A discount of 30 per cent applied. The sentence was 4 years, 10 months and 25 days’ imprisonment.
2.4 counts of indecent filming of adults. The maximum penalty for each count was $10,000 or 2 years’ imprisonment. The sentence starting point was 2 months. A discount of 40 per cent applied. A sentence of 1 month and 7 days’ imprisonment was imposed. This sentence was ordered to be served cumulatively.
3.7 counts of indecent filming of minors. The maximum penalty for each count was $20,000 or 4 years’ imprisonment. A discount of 30 per cent applied. The starting point was 10 months. A sentence of 7 months’ imprisonment was imposed. This sentence was ordered to be served cumulatively.
4.49 counts of aggravated producing child exploitation material. The maximum penalty for each count was 12 years’ imprisonment. The starting point for the sentence was 5 years. A 30 per cent discount applied. The sentence imposed was 3 years and 6 months’ imprisonment. This sentence was ordered to be served cumulatively.
5.1 count of aggravated producing child exploitation material. The maximum penalty for this count was 12 years’ imprisonment. The starting point for the sentence was 1 month. A 40 per cent discount applied. The sentence was 19 days’ imprisonment. This sentence was ordered to be served cumulatively.
6.5 counts of aggravated possession of child exploitation material. A maximum penalty of 7 years’ imprisonment applied for each count. The starting point for this sentence was 1 year and 6 months. A discount of 30 per cent applied. The sentence imposed was 1 year and 19 days’ imprisonment. This sentence was ordered to be served cumulatively.
7.5 counts of possession of child exploitation material. A maximum penalty of 5 years applied for each count. The starting point for this sentence was 10 months. A 30 per cent discount applied. The sentence imposed was 7 months’ imprisonment. The sentence was made wholly concurrent with the sentence imposed for the 5 counts of aggravated possession of child exploitation material.
8.1 count of aggravated indecent assault for which the maximum penalty was 10 years’ imprisonment. The starting point for this sentence was 2 months’ imprisonment. A discount of 30 per cent applied. The sentence was 1 month and 13 days’ imprisonment. This sentence was ordered to be served cumulatively.
9.1 count of assault for which the maximum penalty was 2 years’ imprisonment. The starting point for this sentence was imprisonment for one month. A discount of 30 per cent applied. The sentence was 22 days. This sentence was ordered to be served cumulatively.
Each of the sentences was ordered to be served cumulatively except for Sentence 7 which was ordered to be served concurrently with Sentence 6.
In the sentencing remarks, her Honour addressed a submission that had been made on the appellant’s behalf that some of the counts of Indecent Filming of a Minor involved the same conduct that was the subject of the charges of Aggravated Produce Child Exploitation Material and that the effect of this was that the sentences in respect of those matters ought to account for that. Her Honour rejected that course of action on the basis that the offending occurred on different occasions,[4] saying:^[5]
I point out that victims who are both victims of Indecent Filming of a Minor and Aggravated Producing Child Exploitation Material were offended against at different times and each offence is a separate incursion into offending. For example, the victim of counts 83, 84 and 85 was respectively aged 13, 16 and 17 at the time of each [respective] offence. The victim of count 161 and 138 was respectively aged 11 and 17 at the time of each offence and the victim of counts 162 and 163 was respectively aged 11 and 17 at the time of the offences.
An entirely concurrent sentence would not adequately reflect the gravity of the entirety of your offending. In each instance that I have used s 26 of the Sentencing Act, I have given consideration to the individual sentences that I would have imposed for each offence and then considered whether those sentences should be concurrent, partially concurrent or cumulative. I have allowed for partial concurrency in each single penalty arrived at using s 26.
[4] Ibid at [70] (Bampton J).
[5] Ibid at [70]-[71] (Bampton J).
In relation to the non-parole period, her Honour commenced on the unchallenged basis that the appellant was deemed to be a serious repeat offender by virtue of having been convicted of more than two serious sexual offences against children under the age of 14.[6]
[6] Sentencing Act 2017 (SA) s 53(1)(c).
It was submitted that the appellant did not have a paedophilic disorder. The sentencing Judge heard evidence from the appellant and also several psychiatrists. Her Honour was satisfied the appellant did not have a paedophilic disorder, and was not satisfied that his personal circumstances were so exceptional to declare s 54(1) of the Sentencing Act 2017 (SA) did not apply. Accordingly, the discretion in respect of the non-parole period was constrained by s 54(1)(b). This was set out in a separate ruling delivered contemporaneously with the sentencing remarks.
By this path of reasoning, the sentencing Judge arrived at the head sentence of 10 years, 4 months and 15 days’ imprisonment and a non-parole period amounting to four-fifths of the head sentence, namely 8 years, 3 months and 18 days.
The appeal
The task of the appellate court in consideration of an appeal against sentence was described as follows by Kourakis J (as he then was) in R v Horstmann:[7]
On anappeal against sentence, the Court of Criminal Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King: a failure to take into account relevant matters; having regard to irrelevant matters; or unreasonableness (manifest excess or inadequacy). I shall refer to the first two errors as process errors and the last as an outcome error. Where either a process error or an outcome error has been made, the Court of Criminal Appeal may interfere.
Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.
In the case of a process error, the Court of Criminal Appeal may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error. In such a case, the Court of Criminal Appeal will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself. However, where a process error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.
(footnotes omitted)
[7] ^{[2010] SASC 103 at [36]-[38].}

The appellant alleges four grounds of error:
·a manifestly excessive sentence was imposed;
·a failure to properly apply the totality principle;
·a failure to apply sufficient concurrency to the sentences; and
·an erroneous finding that the appellant’s circumstances did not enliven the exception under s 54(2) of the Sentencing Act 2017 (SA).
Whereas ground 1 is an assertion of an outcome error, grounds 2 and 3 allege process errors. Ground 4 relates to the discrete allegation of a miscarriage of the discretion exercised by the sentencing Judge in determining the operation of the serious repeat offender regime on his circumstances.
It is convenient to consider the specific errors alleged in grounds 2 and 3, followed by the allegation of manifest excess in the sentence, and finally the operation of the serious repeat offender regime.
Whether the sentencing Judge erred in the manner in which concurrency was applied within the sentencing process
The appellant’s arguments in respect of concurrency were several. Firstly, that in a general sense there was a unity in the circumstances of the offending that required that it be viewed as a course of conduct amenable to considerable or complete concurrency, rather than the imposition of discrete, accumulated sentences.
The second was that there was a real risk that there had been double punishment in respect of certain offending that overlapped factually.
Thirdly, it was submitted that the sentencing Judge had not turned her mind to the need for concurrency associated not only with the factual circumstances of the offending but with the acknowledgement of the appellant’s prospects of rehabilitation and other factors favourable to a lesser sentence.
As to the first of these arguments, the appellant submitted that the appellant’s offending disclosed a course of conduct that should have attracted complete, or greater, concurrency. It was argued that in determining concurrency her Honour limited her focus to offences of the same type and failed to consider the connection between the different offences leading to a failure to treat the different offences as requiring concurrency. In particular, the sentences for indecent filming of adults and of minors, and producing child exploitation material, were appropriate for the application of concurrency as between one another. It was submitted that there was little to differentiate the underlying conduct giving rise to these offences.[8]
[8] Applicant’s Written Submissions dated 17 September 2020 at [23].
The Director submitted that, to the contrary, the manner in which the sentencing Judge constructed the sentence was open and available and offered the advantages of recognising the different features of the respective categories of offending. It was submitted that the imposition of notional sentences, aggregated and discounted would have been an “unrealistic and meaningless” exercise[9] because of the extent of the offending in terms of the number of offences and the period over which they were committed. Having adopted the approach that was taken, concurrency was built into the individual sentences such that, except for the sentences that were separated to reflect the different maxima applicable and to which further concurrency was then applied, the sentences were designed to operate consecutively. The Director submitted that the approach taken was open and indeed correct.
[9] Respondent’s Written Submissions dated 16 September 2020 at [46].
The appellant’s second contention in respect of concurrency was that there was a risk that there had been, in effect, a double punishment arising from the fact that the appellant had been sentenced for the offences of indecent filming of adults, indecent filming of minors and aggravated producing child exploitation material where the material was the same.
The Director’s position was that there had been no double punishment. The offences were different and there were sound reasons for the imposition of separate sentences. In one particular example of an individual who was filmed by the appellant on several occasions, the victim of the indecent filming was a minor under the age of 14, and on a subsequent occasion of offending she was a minor between 15 and 18, and later she was an adult when filmed. The appellant was charged in respect of the earliest of the filming offences which was when the child was youngest, but the charge in respect of the possession was related to a film of the child at a different age.
The appellant’s third contention regarding concurrency was that the sentencing Judge failed to have sufficient regard to the appellant’s prospects of rehabilitation, and that these prospects operated across the whole of the offending warranting concurrency across the sentences. It was contended that as a person with an unblemished record, who had demonstrated good character through his work as a chiropractor and who had indicated a willingness not to re-offend, the appellant had strong prospects of rehabilitation. The appellant had initiated treatment by arranging and participating in 8 sessions with a psychologist, Dr Elmer, following his arrest. This was properly reflected, according to the appellant, in partial concurrency across the sentences.
The Director pointed to the ambivalence of the psychiatric evidence regarding the appellant’s prospects of rehabilitation and eschewed the proposition that the factors reflecting the appellant’s good character were required to have effect given to them by means of concurrency between the sentences as opposed to within the discrete consecutive sentences.
Consideration – concurrency
The sentencing Judge was faced with a complex task. There were over 200 offences and over 200 victims. The offence groups carried different maximum penalties from one another, and in some cases attracted different discounts. Some of the conduct gave rise to multiple different offences against the same victim on different dates. Some of the victims were adults and others were minors. Some but not all of the minors were under the age of 14 years.
In more detail, it can be seen that, factually, there were six categories of offending:
·Indecent filming of adults, minors (between 16 and 17 years of age inclusive), and sexual partners, from 2010 onwards, at work, home, in the context of different relationships;
·Production of child pornography in its aggravated form because it was in respect of a minor under the age of 16;
·Possession of child exploitation material arising from the storing of what the appellant had produced by filming minors on his computers and other devices;
-8 of these counts relate to victims who were filmed by the appellant or the subject of a produce child exploitation material count. The possession occurred on 4 devices.
-4 were basic offences.
-4 were aggravated because the child was under 14 whereupon the offence attracted a greater penalty.
·Possession of downloaded items of child exploitation material (counts 4 and 192);
-One was a basic offence, the other was aggravated.
-These downloaded items were made up of 907 category 1 images, 2 category 1 videos.
-Of the 907 images, 497 were aggravated by virtue of relating to a child under the age of 14.
·Assault of the woman who discovered the hidden camera; and
·Aggravated indecent assault in the filming of a client whilst the appellant massaged her during a consultation.
Importantly, where a minor was the subject of a filming offence, if the child was under 15 then the offence was charged as aggravated produce child exploitation material and where the child was between the ages of 15 and 17 inclusive, the charge was indecent filming of a minor.
In approaching the question of whether the manner in which the sentencing Judge dealt with concurrency, the appellate court is required to give “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.”[10] The extent to which sentences ought to be made concurrent with one another is not amenable to precise articulation as there are numerous ways that a sentence, particularly a complex sentence such as this one, may be fashioned. In Attorney-General v Tichy,[11] Wells J said:[12]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively… Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[10] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26] (Gummow, Callinan and Heydon JJ) cited with approval in McIntyre v The Queen [2020] SASCFC 101 at [73] (Doyle J).
[11] (1982) 30 SASR 84.
[12] Ibid 92-93.
The fact that the offending may have been directed at a single purpose (the appellant’s sexual gratification) and that it entailed conduct that might be classified in broadly similar terms, or have overlapping characteristics, is not sufficient against all of the other factors so as to require a single sentence or to dictate how concurrency was required to be incorporated. The similarities between the offences did not demand that the unity be dealt with by greater concurrency across the sentences when account was given for that concurrency through an alternative mechanism, namely the starting point within each sentence and the concurrency provided for as between the offences within each category. This was consistent with the features of the offending that attracted different approaches. For example, the sentencing principles regarding child pornography have developed as a distinct cohort.[13]
[13] R v Turvey [2017] SASCFC 28; (2017) 127 SASR 425; R v Padberg [2010] SASC 189; (2010) 107 SASR 386.
The submission that there was required to be further concurrency applied as between the sentences is fatally undermined by her Honour averting to the different bases for concurrency before applying all of the concurrency as between certain of the sentences. In other words, had concurrency been applied between those sentences that the appellant identified as warranting them, it is evident that less concurrency would have been given within the sentences to which it was applied. There is no need to assume that the sentencing Judge has sentenced sequentially without taking into account the need to apportion the sentencing objectives within each of the sentences.
The sentencing Judge expressly declined to apply concurrency on the basis that to do so would undermine the legislature’s intention as to how such offences were to be treated. In particular, there is a 12 year maximum penalty for producing child pornography for a victim under the age of 14. There is a 4 year maximum penalty for producing child pornography for a victim aged between 15 and 17 inclusive. Some victims were filmed on different occasions, years apart, at ages in each bracket. Her Honour declined to provide for concurrency in relation to such cases, as to do otherwise would create significant risk of disparity between victims against whom the appellant only offended once and victims against whom he offended against over many years. This approach was one available to the sentencing Judge to recognise the various facets of the criminality.
The second aspect of the alleged error concerned double punishment. On its face, there appears to be a risk that the filming conduct was doubly punished in the sentence for the possession of the filmed material. However, this is not borne out on a careful examination of the sentence and the particular charges.
Firstly, however, it is necessary to distinguish this argument from that addressed earlier regarding the relationship between the charges for Indecent Filming of Minors and Aggravated Produce Child Exploitation Material. The sentencing remarks explain[14] that whilst a victim may have been the subject of a charge in each of these categories, the age of the victim varied and the appellant was charged differently depending on whether the victim was under 16 or between 16 and 18 years of age.
[14] Sentencing Remarks in SCCRM-18-294 & SCCRM-18-295 dated 7 February 2020 at [69]-[71] (Bampton J).
The issue regarding double punishment, or the need at least for greater concurrency, arose in respect of the filming and production charges on the one hand, and the possession of the product on the other. Counts 205-212 allege possession of child exploitation material that the appellant produced himself. Four of those charges were of the aggravated form and four were basic. The sentence for the basic charges was made wholly concurrent with the sentence for the aggravated charges. However, there was no further concurrency as between these two sentences and the sentences for indecent filming of minors or aggravated production of child exploitation material even though the possession was of the material produced.
The sentencing process in this matter highlights the choices a sentencing Judge may face in crafting a sentence. The appellant’s contention that there ought to have been concurrency between sentences can only succeed to the extent that the concurrency her Honour chose to apply within sentences 3 and 4, and as between sentences 6 and 7, was inadequate. The appellant’s argument does not succeed because it is evident that the sentencing Judge’s determination of the individual sentences was reached on the basis that she had considered the individual components of the sentence by reference to one another and the whole. Here it must be acknowledged that the exercise of sentence construction should not be seen as having been undertaken in the sequence by which it is subsequently laid out in the remarks. Where the task entails a consideration of many different charges, an iterative assimilation of components may be undertaken to reach a single, or separate, sentence entailing the use of concurrency and the principle of totality to reach an appropriate outcome. What the appellant has not established is that the defect of an excessive sentence that concurrency as between sentences 3 and 4 on the one hand, and 6 and 7 on the other, might cure, had not been otherwise cured in the sentencing Judge’s approach of using concurrency within the individual sentences and as between sentences 6 and 7.
The third contention raised regarding concurrency asserted that it was insufficiently provided for by reference to the need to take account of the appellant’s prospects of rehabilitation, what he had lost as a result of the penalty, and his status as a first offender.
It is correct to say that the sentencing Judge did not refer to giving effect to concurrency for those reasons, as opposed to the concurrency given for the purpose of reflecting the overlap in circumstances of the offending and the extent to which it could be characterised as a course of conduct. However, the criticism is misplaced. As was observed earlier, a sentence may be constructed in a number of ways. The path adopted may follow alternative routes some of which have forks in the road. It is evident that, primarily because of the need to avoid the risk of failing to give proper effect to the different discounts and different maxima, the sentencing Judge adopted a path of imposing several sentences. Before describing those sentences, the sentencing Judge referred to the factors that are complained of as not having been incorporated into the reasoning in respect of the operation of concurrency. However, within each sentence, it may be inferred the issues referred to as requiring concurrency were addressed.
In any event, to the extent that the sentencing Judge was reluctant to find that the appellant was, at the time of sentencing, a good candidate for rehabilitation, such a finding merely reflects the caution expressed by the psychiatrists as to the early stage at which the appellant’s progress towards insight and change had reached. Dr Nambiar drew the following conclusions in his report dated 4 March 2019:[15]
[15] Psychiatric Report of Dr Nambiar dated 4 March 2019, pp. 10-11.
Although there is no past history of offending behaviour of any sort prior to the current index offences, the number of boundaries that Mr Snodgrass transgressed over that 10 year period would suggest an established pattern that would have continued if it was not halted through his arrest. During this period, Mr Snodgrass appeared to believe he was invincible. As there was no history of violence involved in his offending, it would seem unlikely that any possible future offending would include violence. There seems to be an established link between stress experienced by Mr Snodgrass and his engagement in non-contact sex offending, however this continued to escalate and broaden to a variety of aspects to his life that he would know would cause emotional stress to his victims once they discovered his behaviour. The offence of assault suggests a potential for aggression.
Mr Snodgrass is a successful person with a very strong sense of self, a successful practice, trust and respect and admiration by staff and friends and peers, in addition to an establishment of a pattern of offending in the context of a series of shallow, meaningless relationships for sexual gratification alone that would suggest a narcissistic personality. These features would not constitute Psychopathic Personality Disorder but would register a score on the Psychopathy rating scale.
I note no history of major mental illness or substance use.
Although there is no history of sexual violence, there was an element of psychological manipulation of his victims as they were lulled into a false sense of security in the context of doctor patient relationship with no knowledge of how they were being exploited.
There is an element of sexual deviancy with planning and organisation around how he orchestrated to film unsuspecting victims including his sexual partners and how he later created a filing system for those images.
There was also a veracious appetite for collecting pornographic images with excessive masturbation as a means of relieving tension, escaping negative feelings and a total disregard for his actions as he not only collected adult pornography but also incorporated illegal child pornographic images in his collection.
On a more protective aspect, it would appear the Mr Snodgrass has begun to recognise the link between his psychological state and his excessive preoccupation through initial stages of therapy, but he clearly had the potential to overrule his moral value and legal constraints through his actions, to the extent that his behaviour was not solely based on impulse but was meticulously planned and carried out over a considerable period of time.
Another identified protective factor would appear to be Mr Snodgrass’s degree of self-awareness albeit in the context of having been arrested. He sought therapy by an experienced psychologist which has assisted him to begin to gain a better understanding and insight into his behaviours, focusing on his weaknesses and strengths and limitations and making the connection between his thoughts and behaviour in order to cope better in the future with negative affectivity, interpersonal conflict or any other sexual deviant thoughts or urges.
Clearly, Mr Snodgrass has significant problems with coping with stress and was ill-equipped and did not seek support during the period of his offending and going forwards would require assistance with developing better strategies for dealing with stress and negative emotions.
In so far as sexual deviancy is concerned, Mr Snodgrass engaged in behaviour that would be termed scopo philia (pre-occupation in watching others who are naked or engaged in sexual activity as a form of voyeurism which gave rise to the nature of his sexual offending). On the basis of my assessment it is unclear as to whether Mr Snodgrass has any paedophilic tendencies but it would appear that this is quite unlikely.

His ultimate conclusion in respect of whether the appellant was unable or unwilling to control his sexual instincts was as follows:[16]
In my opinion Mr Snodgrass is still required to undergo further psychological treatment in relation to the circumstances that arose that led to his offending and in particular, to develop proper strategies to deal with stress, in order to respond to early warning signs and minimise any aberrant thoughts progressing to parallel or offending behaviours. It is my opinion that although Mr Snodgrass states in his letters and on interview a willingness to change, this has not yet been tested. It is still likely that if given sufficient opportunity that there is a significant risk that Mr Snodgrass could offend again. He therefore satisfies the definition of an unwillingness to control his sexual instincts as it is defined in the Sentencing Act 2017.
[16] Ibid pp. 13-14.
Dr Haeney said:[17]
Mr Snodgrass would, I believe, benefit from substantial further psychological assessment and treatment. I believe this is imperative to further understand his offending and what can be done to prevent recidivism. It is too early to tell whether this will have the desired effect. It is encouraging that he has been open to the idea of therapy, although whether this represents true recognition of his offending and a desire to change, or an attempt at impression management, remains to be seen.
[17] Psychiatric Report of Dr Haeney dated 11 April 2019, p. 44 [16.26].
Thus the difficulty with the submission is that the evidence before the Court indicated that the appellant is still early in his rehabilitation, which is unsurprising in light of the lengthy period over which the conduct occurred and its prolific and sustained nature, and which led to the caution expressed by the psychiatrists.
None of the ways in which the sentencing Judge is said to have erred in respect of the manner in which concurrency was applied within the sentence is made out, and ground 3 fails accordingly.
Ground 2 – an alleged failure to properly apply the principle of totality
The appellant submitted that, by reference to the principles enunciated in R v Smoker,[18] the sentencing Judge was required, but failed or failed adequately, to take into account the factors of the appellant’s guilty plea and his prospects for rehabilitation. Further, her Honour had failed to ‘stand back’ and review the sentence to determine whether its effect would be crushing on the appellant. This offended the principle as described by King CJ in R v Rossi[19] and Kourakis CJ in R v Cramp.[20]
[18] [2016] SASCFC 114; (2016) 126 SASR 201, 223-227 at [75]-[85].
[19] (1988) 142 LSJS 451, 453.
[20] [2010] SASC 51; (2010) 106 SASR 304, 317-321 [50]-[63].
The Director submitted that there was sufficient indication in the language of the sentencing Judge that an adequate reflection on proportionality had occurred in particular in the sentencing Judge’s statement:[21]
I have considered the cumulative effect of each sentence I have imposed and whether the total sentence I have arrived at is proportionate (even though pursuant to s 54(1)(a) of the Sentencing Act I am to bound to ensure the sentence is proportional to the offending) to the criminality of your offending viewed collectively. I am satisfied that the total sentence I have imposed is proportionate to the objective criminality, the maximum penalties and your subjective circumstances.
[21] Sentencing Remarks in SCCRM-18-294 & SCCRM-18-295 dated 7 February 2020 at [75] (Bampton J).
Consideration
The totality principle requires a sentencing Judge who has imposed several sentences to be served cumulatively, or partially concurrently, to review the combined sentence and consider whether the result is “just and appropriate”.[22] It entails consideration of the “overall criminality in all of the offences”.[23] Whilst it has sometimes been described as the process of “standing back” after the aggregation, the principle is not to be seen as attaching to it an obligation to describe the process in sentencing remarks. This is both because the process itself may be synthesised into the construction of the sentence, and also because the remarks are not to be viewed as a blow-by-blow account of the sentencing process. As Wells J said in R v Reiner:[24]
A trial judge, when imposing a sentence, directs his remarks to the prisoner first, and to other people next. They do not constitute a written judgement (they are not “Reasons for Sentence”); they do not purport to represent an exhaustive inventory of the facts and matters taken into account; they are not published as a monograph on the judicial art of sentencing.
[22] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [8] (Wilson, Deane, Dawson, Toohey and Gaudron JJ) citing with approval D. A. Thomas, Principles of Sentencing (2^nd ed, 1979) 56-57. Also see, R v Place [2002] SASC 101; (2002) 81 SASR 395, 426 [88] (Doyle CJ, Prior, Lander and Martin JJ).
[23] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307-309 (McHugh J) cited with approval in R v Bartell [2008] SASC 289 at [9] (Gray, Sulan and David JJ).
[24] (1974) 8 SASR 102, 114.
In R vSmoker,[25] the Court observed that totality is a mechanism for achieving proportionality. The sentencing Judge disclosed her reasoning in relation to the sentence including her conclusion that the sentence that had been constructed was proportionate to the criminality that the appellant had engaged in. Her Honour said:[26]
I have considered the cumulative effect of each sentence I have imposed and whether the total sentence I have arrived at is proportionate (even though pursuant to s 54(1)(a) of the Sentencing Act I am not bound to ensure that the sentence is proportional to the offending) to the criminality of your offending viewed collectively. I am satisfied that the total sentence I have imposed is proportionate to the objective criminality, the maximum penalties and your subjective circumstances.
[25] (2016)126 SASR 201.
[26] Sentencing Remarks in SCCRM-18-294 & SCCRM-18-295 dated 7 February 2020 at [75] (Bampton J).
It is evident that the paragraph set out above signals her Honour’s review of the ingredients of the sentence as gathered and the sentence it produces. To the extent that this is the “stepping back” exercise referred to by Kourakis CJ in R v Cramp,[27] it has been undertaken.
[27] [2010] SASC 51; (2010) 106 SASR 304, 317-321 [50]-[63].
It was also submitted that insufficient regard had been had to whether the effect of the sentence would be crushing upon the appellant. In R v E, AD,[28] Doyle CJ (with whose reasons Besanko J agreed) said:[29]
In recent times there has been a tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing a sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
(citations omitted)
[28] [2005] SASC 332; (2005) 93 SASR 20.
[29] Ibid at [38].
This passage was cited with approval by Nicholson J in R v Smoker.[30] In R v Smoker, the Court gave colour to the concept of a crushing sentence by reference to the effect of the sentence upon the motivation of the defendant to rehabilitate.
[30] [2016] SASCFC 114; (2016) 126 SASR 201, 206-207 [16].
The concept of a ‘crushing’ sentence is properly reserved for that relatively small group of defendants whose age or infirmity, or some other circumstance, means that a sentence that would otherwise be appropriate would have a crushing effect upon the defendant’s motivation to rehabilitate and expectations for his or her life experience following the expiry of the sentence.
The appellant was taken into custody on 10 October 2017, aged 50. As sentenced, he will be 58 when eligible for parole. It was not suggested that he experiences any condition that would reduce his life expectancy. It must be uncontroversial that, on his release from prison, his prospects of working in any regulated health field are much reduced. However, it could not be said that the effect of the sentence could properly be considered to be crushing in the sense intended by Doyle CJ in R v E, AD.[31]
[31] [2005] SASC 332; (2005) 93 SASR 20 at [38].
The ground of appeal asserting an error in the failure to apply the principle of totality fails.
Ground 1 – the sentence was manifestly excessive
Having determined that there was no process error in the judgment, it still falls to be considered whether the sentence was manifestly excessive. As Doyle J said in R v McIntyre:[32]
In Hili v The Queen, the plurality of the High Court stated:
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 ismanifestly excessiveor 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”. ...
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.” 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. But ultimately, manifest excess or inadequacy is a conclusion, and may not permit of lengthy exposition.
(citations omitted)
[32] [2020] SASCFC 101 at [71]-[72].
What can be seen from a comparison of sentences for offending that shares some characteristics with that of the appellant’s offending, is that a wide range of penalties have been imposed.
In R v Turvey,[33] the defendant was charged with unlawful sexual intercourse with a person under the age of 14 years, six counts of unlawful sexual intercourse with a person under the age 17, 3 counts of producing CEM and one count of possessing CEM. Doyle J (with Nicholson J agreeing) found that a notional starting point of 14 years was manifestly excessive and instead used a notional starting point of 11 years for all of the offences. After applying reductions for early guilty pleas, the sentence imposed was 7 years and 9 months’ imprisonment with a non-parole period of 6 years and 6 months.
[33] [2018] SASCFC 68.
In R v Cecchin,[34] the appellant was sentenced to 4 years’ imprisonment with a non parole period of 2 years and 3 months for 2 counts of aggravated possesion of CEM, 2 counts of aggravated dissemination of CEM and 1 count each of aggravated obtaining access to CEM. The conduct was alleged to have occurred over a 3 year period. The victim was under 14 years old and known to the defendant. A significant matter affecting sentencing was that the defendant had been diagnosed as having Autism Spectrum Disorder.
[34] [2017] SASCFC 109.
In R v Ohmer,[35] the defendant pleaded guilty to one count of aggravated production of CEM and one count of aggravated possession of child exploitation material (“CEM”). Ohmer was caught filming young children changing at a swimming pool and a subsequent search of his premises uncovered approximately 200,000 images and videos of CEM. The material predominately fell within categories 1 - 4 on the Oliver Scale but included material within category 5. Ohmer had no prior convictions and was aged 31 at the time of sentence. He was sentenced on the basis of a 10 year interest in CEM. On appeal his sentence of 4 years imprisonment with a non-parole period of 18 months, having been reduced from a starting point of 5 years on account of his guilty plea, was found not to be manifestly excessive.
[35] [2011] SASCFC 44.
In R v Riddle,[36] Anderson J with whom Kourakis CJ and Nyland J concurred, rejected an allegation of manifest excess in relation to a sentence of 1 year and 9 months’ imprisonment for indecent filming (reduced from 2 years and 6 months for the guilty plea and the defendant’s remorse). The sentence was accompanied by a further sentence of 2 years and 3 months’ imprisonment for aggravated possession of child pornography (some of which was the filmed material but the vast majority of which was downloaded from the internet), with the two sentences being given some concurrency such that the final sentence was imprisonment for 3 years and a non-parole period of 1 year and 10 months. The defendant had no prior convictions and the filming offences arose from 23 videos taken within the defendant’s bathroom and included film of an unidentified teenage girl having a shower.
[36] [2012] SASCFC 82; (2012) 113 SASR 314.
However, those matters only shed limited light on the task that faced the sentencing Judge. None lends itself to a direct comparison with the sentencing task that faced the sentencing Judge. The number of offences and victims, the fact that there were several different types of offences, and the lengthy period of sustained offending were features that each and together take this sentencing exercise outside of any of the comparable matters. There are also features of the appellant’s conduct that are unusual. Whereas a charge of production of CEM is often accompanied by a charge of indecent assault, the production of CEM in this case was not accompanied by indecent assault. Whereas production and possession of CEM is often accompanied by dissemination of CEM, that was not the case in respect of the appellant’s offending. This does not mean that the appellant’s offending as charged was less serious. It simply provides an explanation for the lack of comparable sentences because of the manner in which global sentencing and concurrency may affect the overall outcome.
There were several features of the offending that called for a lengthy term of imprisonment. In addition to the number of offences and victims, there was gross breaches of trust in respect of patients, partners, and his daughters attracting the need for strong general deterrence. Whilst the appellant worked as a health professional, he sought no professional help over the sustained period of the offending in an effort to end the conduct. In respect of the considerable number of counts concerning children being the filming of minors, the production of CEM, the possession of the downloaded images, Hinton J in R v Turvey[37] observed that sexual abuse of children will attract sentences that border on severe and that the fact that an abuser has not previously been imprisoned, or is of prior good character, will generally carry little weight.[38]
[37] [2017] SASCFC 28; (2017) 127 SASR 425.
[38] Ibid at [128].
This Court has also endorsed[39] various propositions apposite for application in the sentencing of child exploitation matters, derived from an analysis of the NSW Court of Appeal in R v De Leeuw:[40]
[39] Ibid at [134]; R v Cecchin [2017] SASCFC 109 at [52] (Lovell J).
[40] [2015] NSWCCA 183 at [72].
(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted;
(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and
(vi) the length of time for which the pornographic material was possessed.
(c) General deterrence is the primary sentencing consideration for offending involving child pornography;
(d) Less or limited weight is given to an offender’s prior good character;
(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography;
(f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet;
(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children;
(h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market; and
(i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.
(citations omitted)
Taking these factors into account, the sentence is lengthy as is appropriate for the criminality it responded to. However, when the sentences for each group of offences is considered by reference to the number of counts, it can be seen that, for example, each occasion of indecent filming is given a sentence of approximately 2 weeks’ imprisonment.
The appellant has not established that the sentence is manifestly excessive.
Ground 4 - Operation of the serious repeat offender scheme
The sentencing Judge determined the issue of the appellant’s status under the serious repeat offender provisions in a ruling published separate to and contemporaneous with the delivery of the sentence. Section 54 of the Sentencing Act 2017 (SA) provides:
54—Sentencing of serious repeat offenders
(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)     the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)     any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence.
(2)     However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)     the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence;
(b)     it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.

No challenge was made to the characterisation of the appellant as a serious repeat offender. However, the appellant contended that the sentencing Judge erred insofar as she failed to find the appellant’s personal circumstances “exceptional” so as to bring him within the exception to the rule that a serious repeat offender’s non-parole period must be fixed at four-fifths of the head sentence imposed. The appellant submitted that the accumulation of a number of circumstances, namely his lack of antecedents and prospects of rehabilitation and the fact that all of the qualifying offences came to the court at the same time, brought the appellant within the exception. It was emphasised that the fact that the appellant had not previously been warned or punished by the court was a matter of significance in this consideration.
The Director maintained that no error had been committed and that the sentencing Judge correctly found the appellant’s circumstances not to be exceptional. Counsel for the Director observed that whilst the appellant’s character was not referred to in the ruling, it should be borne in mind that the ruling and the remarks were delivered together and that it could properly be inferred that the issues relevant to both functions were alive in the sentencing Judge’s mind. It was therefore of little significance the issue of character, referred to in the sentencing remarks as having been considered, was not separately referred to in the ruling.
The sentencing Judge drew on the submissions regarding the reasons for the offending to make a determination concerning the appellant’s “personal circumstances”. Her Honour accepted that the appellant immersed himself in his work following his wife’s death and that his grief was compounded by his father’s death two years later. Her Honour acknowledges this to be a trauma that provides some explanation for the circumstances of the commencement and escalation of the offending conduct. After considering the evidence regarding the appellant’s prospects of rehabilitation, the sentencing Judge concluded that the appellant had “some way to go” before an informed assessment as to his risk of reoffending and prospects of rehabilitation could be assessed.
The term “exceptional” is not defined but in other contexts has been taken to mean “out of the ordinary”. The term is used in s 38(2ba) of the Criminal Law (Sentencing) Act 1988 (SA), albeit in a different manner. In R v Skinner,[41] Doyle J said the following in respect of the term in s 38(2ab):[42]
[41] [2016] SASCFC 106; (2016) 126 SASR 120.
[42] Ibid 136-138 [87]-[97].
As to what is meant by “exceptional circumstances”, I commence by emphasising that while some consideration of, and elaboration upon, the words chosen by Parliament may assist in applying the test, the test remains one solely referrable to those words. The test is, and is only, whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exist exceptional circumstances warranting suspension of the sentence of imprisonment.
However, in applying this test, it is plain that it was intended by Parliament to be a higher, or more demanding, test than the “good reason” test for suspension in s 38(1). This is plain not only from the words chosen to articulate the test, but also the reference during the Second Reading Speech (in relation to the 2014 amendments to s 38) to the distinction drawn between “good reason” and “ exceptional circumstances ” in R v Fowler. However, the Second Reading Speech does not provide any assistance as to what is meant by “ exceptional circumstances” beyond the reference to R v Fowler, and a reference to the situations in which suspension will be warranted being “truly exceptional.”
In R v Fowler, consideration of what was meant by exceptional circumstances occurred in the context of the Court emphasising that despite reference in some of the authorities to the test for suspension of some categories of offence requiring “exceptional circumstances”, the ultimate test for suspension under s 38(1) remained one of “good reason” and not one of “exceptional circumstances”.
In considering the meaning of “exceptional circumstances” in that context, Gray and Layton JJ said:
There is a substantial and important difference between the “exceptional circumstances” test as discussed in Manglesdorf and the “good reason” test to draw from the wording of the statute. The “good reason” test established by the legislature requires the sentencing judge to consider all of the circumstances of the instant case and make an assessment as to whether those circumstances give rise to good reason to suspend the sentence.
On the other hand, the “ exceptional circumstances ” test implies that a sentencing judge ought to compare the circumstances of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and thereby justify an exercise of the discretion to suspend. This may lead the court to be asked to first consider what the common or typical features of drug trafficking cases are and then compare such features with the case at bar to decide whether such circumstances may be characterised as “exceptional” before considering then whether to suspend. Such an approach would require the fulfilment of conditions which contradict the statutory requirement. In this way, the “exceptional circumstances” test represents a significant departure from the test set down by Parliament.
A number of decisions have considered the concept of “exceptional circumstances” in different legislative contexts. Some of those authorities were conveniently collected and summarised by Muscat DCJ in R v Bagguley, a decision referred to by the Judge in this case.
For example, in R v Kelly, Lord Bingham said:
It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
In my view, this elaboration upon the meaning of exceptional circumstances is apposite in the present context.
I also consider that some assistance can be derived from this Court’s consideration of “special reasons” in the context of minimum non-parole periods under s 32A of the Sentencing Act 2017 (SA), and “special circumstances” in the context of s 10A of the Bail Act 1985 (SA). In those contexts, while emphasising the wide and flexible content of those terms, it has been held that their content is to be informed by the relevant statutory context, and in particular the objects of the provision in question and the mischief to which it was directed. It has been held that special reasons or circumstances connote reasons or circumstances which take the particular case out of the contemplated scope of the statutory provision, or outside of the circumstances contemplated by Parliament.
While “exceptional circumstances” does connote circumstances outside of the range of circumstances ordinarily or normally encountered, the Court must be careful not to set the test so high that it becomes near impossible to satisfy. As Lord Bingham cautioned, in the passage extracted above, the circumstances need not be unprecedented or very rare.
The exceptional nature of the circumstances may emerge from consideration of a single circumstance or a combination of circumstances. It may emerge from consideration of the circumstances of the offending, the circumstances personal to the offender or some combination of both. It may emerge from qualitative considerations (in the sense of circumstances of a type that do not commonly arise) or quantitative considerations (in the sense of circumstances arising to an uncommon extent or degree).
Beyond these very general observations, it is neither possible nor desirable to be more prescriptive as to what will be required to establish “exceptional circumstances” sufficient to warrant suspension of a sentence of imprisonment under s 38(2ba). It will depend upon the facts of the particular case.
(citations omitted)
Much of that analysis is apposite in respect of the phrase “personal circumstances” in s 54. The circumstances must be such, either individually or more likely in a combination, that the ordinary person would characterise them as outside the ordinary range.
However, some assistance in contextualising the term within s 54 is provided by the indication that the exceptionality by reference to the need to provide for the safety of the community and for personal and general deterrence. In the appellant’s case, the provision is most keenly engaged in the weighing of whether the appellant’s personal circumstances are such as to override the legislature’s intention that general deterrence be achieved by denunciating the appellant’s conduct with a sentence that need not be proportionate and to which a non-parole period of four-fifths of the head sentence must attach.
The personal circumstances referred to by senior counsel for the appellant included his prospects for rehabilitation, his appearance before the Court as a first offender with an unblemished history, and the precipitating event of his wife’s early death from cancer. However, the appellant’s prospects of rehabilitation have already been shown to be as yet indeterminable. Further, sexual offenders as a category of offender, come before the court with no criminal history more often than some other categories of serious offender, such that the exceptionality within the group of sexual offenders is less readily established. The circumstance of experiencing the death of a spouse, even in such an untimely way, did not require a finding of exceptionality. Whilst each of these matters might be capable, in an appropriate case, of contributing to a finding of exceptionality, they do not generally require such a finding, and did not require such a finding in this case.
No error in the exercise of the discretion has been demonstrated in relation to the sentencing Judge’s characterisation of the appellant as a serious repeat offender whose personal circumstances were not such as to enliven the exception. This ground of appeal is not made out.
To obtain permission to appeal a sentence, the appellant need only demonstrate that the grounds of appeal are reasonably arguable.[43] As outlined above, the task faced by the sentencing Judge was complex, and there were circumstances associated with the offending that were unusual and did not lend themselves to easy comparison with other matters. I consider that the four grounds raised by the appellant were reasonably arguable and I would grant permission to appeal. However, ultimately none of the grounds of appeal has been made out, and I would dismiss the appeal.
[43] R v Parenzee [2007] SASC 316; (2007) 101 SASR 456 at [22] (Doyle CJ, with Anderson and Kelly JJ agreeing); R v Barmby [2007] SASC 354 at [12] (Gray J).