Zozuk-Levy v The King - [2025] SASCA 90

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ZOZUK-LEVY v THE KING
[2025] SASCA 90
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice Stanley)
21 August 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ILLNESS OR PHYSICAL DISABILITY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
The applicant, Tylor Zozuk-Levy, sought leave to appeal against a sentence imposed. He had pleaded guilty to possession and dissemination of child exploitation material contrary to ss 63A(1) and 63(b) of the Criminal Law Consolidation Act 1935 (SA), and four counts of failing to comply with reporting obligations contrary to s 44(1) Child Sex Offenders Registration Act 2006 (SA). The applicant also, in breach of his reporting obligations, breached his suspended sentence bond.
The total period of imprisonment imposed was four years, four months, and 26 days. This sentence included applicable discounts and was ordered to be served cumulatively with the revoked suspended sentence.
The applicant advances two grounds of appeal for determination by the Court. He contends, first, that the judge erred by failing to give sufficient weight to his limited cognitive capacity and diminished ability to appreciate the gravity of the offending. Secondly, he submits that the judge erred in not finding exceptional circumstances, having regard to his personal circumstances including his cognitive limitations, and the absence of timely sex offender treatment, treatment which, once received, helped him to understand the gravity and nature of his offending. On that basis, he claimed he should not have been sentenced to an immediate term of imprisonment and that the sentence imposed was manifestly excessive.
In considering the grounds of appeal, the Court noted that error is not demonstrated merely by asserting that greater weight ought to have been given to certain factors; such a complaint can only be relevant to the ground of appeal that, in doing so, the sentence imposed was manifestly excessive.
Held:
1.As to the first ground, the Court held that the sentencing judge did not fail to take into account the applicant’s cognitive limitations. The judge referred expressly to the evidence on this issue and understood the applicant’s difficulties in appreciating the wrongfulness of his conduct. The submission amounted to no more than a complaint that insufficient weight was afforded this factor, which does not disclose House v The King error.
2.As to the second ground, the Court held that the sentencing judge did not err in declining to find exceptional circumstances. The applicant’s personal and cognitive circumstances were considered, but the judge, in the exercise of the sentencing discretion, concluded that they did not outweigh the objective seriousness of the offending. As the offence of disseminating child exploitation material constitutes a serious sexual offence under s 96(9) of the Sentencing Act 2017 (SA), the Court was precluded from suspending any term of imprisonment. An immediate custodial sentence was therefore inevitable.
3.The Court held that the sentence imposed fell within the range open to the sentencing judge and was not manifestly excessive. General deterrence and community protection were properly treated as paramount considerations.
4.As no specific or outcome error was identified, the Court refused the application for leave to appeal and dismissed both grounds.

Child Sex Offenders Registration Act 2006 (SA) s 44(1); Criminal Law Consolidation Act 1935 (SA) ss 63A(1), 63(b); Sentencing Act 2017 (SA) ss 71(2)(d), 96(3)(a), 96(3)(ba), 96(9), 114(1)(d), referred to.
Kentwell v The Queen (2014) 252 CLR 601; R v Lutze [2014] SASCFC 134, applied.
AB v The Queen (1999) 198 CLR 111; Brooker v The King [2024] SASCA 135; House v The King (1936) 55 CLR 499; R v Brandon [2024] SASCA 9; R v De Leeuw [2015] NSWCCA 183; R v Hronopoulos [2017] SASCFC 143; R v Padberg (2010) 107 SASR 386, discussed.
Cappo v The King [2025] SASCA 55; Giordimania v R [2020] SASCFC 28; R v A [2016] SASCFC 66; R v Monks (2019) 133 SASR 182; R v Morse (1979) 23 SASR 98; R v Nankivell [2022] SASCA 87; R v Urch [2024] SASCA 28; R v Wiskich (2000) 207 LSJS 431; Walsh v The King [2024] SASCA 146, considered.

ZOZUK-LEVY v THE KING
[2025] SASCA 90
Court of Appeal – Criminal: Livesey P and Stanley JA
THE COURT:
Introduction

This is an application for permission to appeal a sentence of imprisonment. The applicant, Tylor Zozuk-Levy, pleaded guilty to a number of child exploitation material offences.
On 3 December 2024 he was sentenced for the offences of:
(i)knowingly be in possession of child exploitation material contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), which carries a maximum penalty of imprisonment for 12 years;
(ii)disseminating child exploitation material contrary to s 63(b) of the CLCA, which carries a maximum penalty of imprisonment for 15 years; and
(iii)four counts of failing to comply with reporting obligations contrary to s 44(1) of the Child Sex Offenders Registration Act 2006 (SA) (CSOR Act), the maximum penalty for which is a fine of $10,000 or imprisonment for two years.
In relation to the offending contrary to s 63A(1) of the CLCA the sentencing judge applied the maximum available discount of 10 per cent. In relation to the offending contrary to s 63(b) of the CLCA the judge applied the maximum available discount of 10 per cent. In relation to the four counts of failing to comply with reporting requirements contrary to s 44(1) of the CSOR Act the judge applied the maximum available discount of 30 per cent.
The applicant was also sentenced for breaching a suspended sentence bond imposed by Judge Muscat on 8 March 2023 for earlier child exploitation material offending. The sentence for the breach of bond is not the subject of this appeal. It is conceded that proper grounds did not exist to excuse the breach of bond, and that an inevitable consequence of the breach was that the applicant has to serve the suspended term of imprisonment for the original offending.
The applicant was sentenced by Judge Allen on 3 December 2024. He was sentenced to a single penalty for the offending of two years, one month and seven days imprisonment after application of the discount, to be served cumulatively upon the revoked suspended sentence of two years, one month and 15 days with a non-parole period of 12 months. The total period of imprisonment imposed was four years, four months and 26 days. The non-parole period was fixed at two years and nine months.
The head sentence and non-parole period were each reduced by five months on account of the applicant’s time in custody and on home detention bail, resulting in a total head sentence of three years, 11 months and 19 days with a non-parole period of two years, three months and 24 days.
In accordance with the legislative constraints of s 71(2)(d) and s 96(3)(a) of the Sentencing Act 2017 (SA) (the Act) the sentencing judge ordered that the term of imprisonment be served immediately, commencing on 3 December 2024.
Factual basis of offending
The factual basis of the offending is detailed in the sentencing remarks of Judge Allen.
On 24 October 2023 police searched the applicant’s home residence following information that identified the applicant as having paid money to known child sex facilitators in the Philippines for live, online child exploitation material. The applicant’s phone was seized and a review of its contents revealed 18 videos in Category 1 of the definition of child exploitation material, and five images and 227 videos in Category 2. These constituted the offence of possession of child exploitation material.
Police also discovered evidence of online communications between the applicant and other users of a platform “Session”, an online platform which was said to facilitate communication between persons involved in the dissemination of child exploitation material. The particular communication occurred on 28 August 2023 where the applicant sent an unknown user a 34-second video depicting Category 1 child exploitation material. This was the basis of the charge of contravening s 63(b) of the CLCA for disseminating child exploitation material. In addition, police discovered numerous examples of online communications which were uncharged acts placing the offending in its proper context.
Upon further review of the applicant’s mobile phone, police found that he had failed to report four social media accounts in contravention of the requirements of the CSOR Act. This constituted the four counts of failing to comply with reporting obligations.
Personal circumstances of applicant
The applicant has led a sad and difficult life. He was born on 14 December 1995. He was around 27 years of age when the second tranche of offending commenced. He is now 29 years of age. The sentencing judge received various documents in the course of sentencing submissions including the sentencing remarks of Judge Muscat of 8 March 2023; psychological reports of Dr Robyn Young dated 15 November 2022, 4 December 2022, 20 February 2023 and 27 July 2024; an affidavit of Dr Young dated 2 October 2024; correspondence from Owenia House dated 1 August 2024 and 8 October 2024; affidavits of Ms Beverley Anne Levy, Mr Graham Bruce Levy and Ms Debra Ann Welsh, each dated 23 October 2024; letters and certificates of achievement; and a pre-sentence report from the Department of Correctional Services dated 24 October 2024.
In short, this material established that the applicant has autism spectrum disorder, attention deficit hyperactive disorder and foetal alcohol syndrome.
He was abandoned by his biological mother when he was 13 months of age. He was raised by Beverley and Graham Levy. Before his mother abandoned the applicant it was reported[1] that he suffered abuse from various men his mother lived with, including sexual abuse. His biological mother was an alcoholic and a drug addict. He had been diagnosed in early childhood with foetal alcohol syndrome. He never knew his biological father and has had the most intermittent contact with his biological mother since she abandoned him. His childhood development was considerably delayed. He was expelled from kindergarten and his adoptive parents reported that he was unable to express himself verbally. He had few if any friends throughout school, which he described as lonely. He was frequently bullied and isolated from peers. In Year 11 the applicant described being depressed. After leaving school he obtained employment as a cleaner but struggled to hold down fulltime employment. From around 2022 until he commenced serving this sentence he resided with his older sister, Debra Welsh.
[1] Report of Dr Robyn Young, 15 November 2022 p 3.
The applicant was first assessed by Dr Young at the age of 13. Dr Young was later requested to assess the applicant in 2022 after his first tranche of offending. She was of the opinion that the applicant was aware that what he had done was wrong but exhibited considerable difficulty in understanding why. In particular he struggled to understand the connection between viewing images and consequent harm to children, because he was not in direct contact with them. She considered the applicant needed to be educated about the wrongfulness of his actions and the impact they had on the children involved.
At the time of the first offending in 2022 it was reported that the applicant was depressed and suicidal. He commenced anti-depressant medication at that time. He reported nightmares about police and said he “already felt like the world hates me, and now they’ll hate me even more”. Dr Young reported that the applicant would be particularly vulnerable in gaol and would need help to stay safe. She considered that it would be particularly difficult for the applicant to understand social environments such as a prison as it would be an environment that the applicant was ill-equipped to navigate and was likely to be problematic.
On 8 March 2023 Judge Muscat sentenced the applicant to a term of imprisonment of two years, one month and 15 days. That sentence of imprisonment was suspended upon the applicant entering into a bond. The applicant was re-arrested on 12 December 2023 in relation to this offending. He was granted home detention bail on 18 December 2023. On 3 April 2024 he commenced a program at Owenia House. In July 2024 Dr Young provided a further report addressing this offending by the applicant. She noted that notwithstanding that since his previous offending he had undergone treatment and education from psychologists, he still reoffended. Dr Young considered that while the applicant found the treatment useful, neither of the treating psychologists had specialised in sexual offending, and although child exploitation material had been discussed during his treatment the focus was on the applicant’s autism. Dr Young accepted that her previous assessment that the risk of recidivism was low due to the psychological treatment he was receiving and his desire to rehabilitate, did not stop him from reoffending. She considered that psychologists whom specialise in autism informing him about the impact of offending alone proved to be insufficient to prevent further offending.
Dr Young noted that the education obtained by the applicant from 18 weeks of intensive engagement with specialist sex offender services at Owenia House from April to July 2024 was more beneficial in his treatment in a way that previous education by others was not. She considered it unfortunate that this program was not available to him earlier. She stated that it was likely the applicant’s risk of reoffending would have diminished had this treatment commenced earlier. Dr Young observed that through the course of his treatment the applicant had learned to acknowledge and be honest about his intrusive thoughts which prompted his desire to view child exploitation material, he learned that when those thoughts occurred he needed to seek help from qualified professionals. He also learned more about how child exploitation material impacted both victims and offenders.
Grounds of appeal
The applicant has two grounds of appeal. They are that:
the sentencing judge fell into error by not adequately taking into account the applicant’s lack of cognitive capacity to appreciate the gravity of the offending (ground 1); and
the sentencing judge fell into error in the exercise of his sentencing discretion by failing to find the existence of exceptional circumstances, in particular, the applicant’s background, cognitive limitations and the absence of timely provision of specific sex offender treatment, without which the applicant was unable to properly understand the nature and gravity of his offending, resulting in a sentence which was manifestly excessive.
Principles of sentence appeals
An appellate court’s authority to intervene on an appeal against sentence is dependent upon demonstration of error. On an appeal the function of the appellate court depends on the distinction between specific error, of any of the kinds identified in House v The King,[2] and a conclusion of manifest excess or inadequacy, as explained by the plurality in Kentwell v The Queen.[3] In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to resentence, unless in a separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.[4]
[2] (1936) 55 CLR 499 at 505-506.
[3] [2014] HCA 37 at [35], (2014) 252 CLR 601 at 615.
[4] Kentwell v The Queen [2014] HCA 37 at [35], (2014) 252 CLR 601 at 615; R v Lutze [2014] SASCFC 134 at [47], (2014) 121 SASR 144 at 154.
It is not an appellable error, in accordance with the principles in House v The King, that a sentencing judge has placed too little or too much weight on one or more of the applicable sentencing considerations. It is in the very nature of a sentencing discretion that different judges will evaluate the considerations relevant to its exercise in different ways. A submission that a sentencing judge did not give adequate or sufficient weight to a factor is not, of itself, capable of enlivening the appeal court’s power to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most it can form part of a submission that there was manifest error.[5] In AB v The Queen[6] Hayne J said, in a passage subsequently adopted by French CJ, Hayne, Bell and Keane JJ in Kentwell v The Queen;[7]
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
[5] Kentwell v The Queen [2014] HCA 37 at [35], (2014) 252 CLR 601 at 615.
[6] [1999] HCA 46 at [130], (1999) 198 CLR 111 at 160.
[7] [2014] HCA 37 at [35], (2014) 252 CLR 601 at 615.
Accordingly, a complaint that the sentencing judge imposed a sentence that failed to give sufficient weight to the purposes of the Act can only be relevant to the ground of appeal that, in doing so, he imposed a sentence that was manifestly excessive.[8]
[8] R v A [2016] SASCFC 66 at [61].
To determine whether a sentence falls outside the range of permissible sentences for the offender, the offence requires consideration of all matters relevant to fixing sentence, including the prescribed maximum penalties, sentencing standards for the respective offence, seriousness of the offence and matters that are personal to the offender.[9]
[9] R v Morse (1979) 23 SASR 98 at 99.
In the last three years this Court has considered a number of sentences for child exploitation offending.[10] A consideration of these judgments evidences a more stringent approach by the courts in sentencing for this type of offending over the decade since R v Padberg[11] was decided.
[10] R v Nankivell [2022] SASCA 87; R v Brandon [2024] SASCA 9; R v Urch [2024] SASCA 28; Brooker v The King [2024] SASCA 135; Walsh v The King [2024] SASCA 146 and Cappo v The King [2025] SASCA 55.
[11] (2010) 107 SASR 386.

In Brooker v The King[12] this Court said:[13]
It is necessary for sentencing courts to make it clear that the community does not tolerate the sexual abuse of children, whether in person or over the internet, including by the pernicious production, possession and dissemination of child exploitation material. Appeal courts must likewise do what they can to protect children and the community, by ensuring that sentences deter, denounce and punish offenders and, by their reasons, give due recognition to the interests of victims and their families. This must be done recognising that the prevailing standards of punishment reflect a hardening in community attitudes and increased maximum penalties for offending of this kind.
[citation omitted].
[12] [2024] SASCA 135.
[13] [2024] SASCA 135 at [88].
In R v Brandon[14] this Court explained the role of an offender’s personal circumstances in determining sentences for offences of this kind in the following terms:[15]
Whether when sentencing those who create and distribute child exploitation material, or when sentencing those who view it, this Court must do what it can to discourage the sexual exploitation of children. For that reason, it is well-recognised that limited weight will be given to a defendant’s personal circumstances, including prior good character, and emphasis must be given to deterrence in order to protect the safety of the community of which these children form an integral part.
[14] [2024] SASCA 9.
[15] [2024] SASCA 9 at [32].
Ground 1
In this case, the applicant submits that the sentencing judge erred by not adequately taking into account the applicant’s lack of cognitive capacity to appreciate the gravity of the offending. We do not accept this submission. At issue is whether the sentencing judge erred by not taking into account the applicant’s lack of cognitive capacity to appreciate the gravity of his conduct at the time of the offending. This required the applicant to establish not just that he had a cognitive impairment, namely autism, but that his autism caused or contributed to his offending, and that the sentencing judge failed to consider that contribution. This topic was considered in R v Hronopoulos[16] by Hinton J who explained that mental impairment is always a factor in the sentencing process. He said:[17]
[16] [2017] SASCFC 143.
[17] [2017] SASCFC 143 at [69]-[72].
The relevance of mental illness falling short of mental incompetence to the determination of sentence was dealt with comprehensively by Martin J, with whom Prior and Williams JJ agreed, in R v Wiskich. As Martin J shows it is not appropriate to simply fasten on to the fact that the offender suffers a mental illness and then, without regard to the symptoms and consequences of the illness, contend that general deterrence has no part to play in the sentencing process. That at times appeared to be the applicant’s approach on the hearing of this appeal.
Martin J quoted with approval from the judgment of Gleeson CJ in R v Engert (Engert). Gleeson CJ said:
Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No 2) as follows:
“...protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.”
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
(citation omitted.)
After carefully surveying the relevant authorities Martin J arrived at a conclusion not materially different to that of Gleeson CJ. He said:
In sentencing persons suffering from mental disorders it is important to bear in mind the general observations of Gleeson CJ in Engert to which I have already referred. The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender's thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
The passage from the judgment of Gleeson CJ in Engert quoted by Martin J was also quoted with approval by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ in Bugmy v The Queen (Bugmy) and by French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda v Western Australia (Munda). Whilst Bugmy and Munda were cases concerning the relevance to sentence of a defendant’s deprived background and not mental illness, the joint reasons suggest that the approach of the sentencing court in considering the relevance and weight to be attached to either factor is the same and is as set out by Gleeson CJ in Engert. That is unsurprising given the High Court’s emphasis particularly in Bugmy and Munda on the determination of an appropriate sentence as being a process resulting in an individualised outcome. Thus, within the bounds of proportionality, a sentence is to be fashioned having regard to the protection of the community and the purposes of punishment that fits the offending and the offender. Within that framework the question of how a particular mental illness influences the sentencing outcome will be a product of its symptoms and consequences for the defendant and the bearing that such symptoms and consequences have on achieving the purposes of the sentencing task. Critical to the task will be the exposure of a link grounded in the evidence before the sentencing court between the illness and any of the purposes of punishment or the mode of punishment under consideration.
[citations omitted].
It cannot be doubted that impaired intellectual capacity may be relevant to the exercise of the sentencing discretion. The severity of the impairment, the extent to which it influenced the offender’s conduct, or affected his or her ability to appreciate the gravity of the offending conduct, are factors that are relevant to the sentencing exercise.[18] The impairment may be relevant to an offender’s moral culpability, to the need for general deterrence, to considerations of personal deterrence, and the defendant’s character and prospects of rehabilitation. In some cases it may also affect the hardship of a given sentence of imprisonment to the offender.[19]
[18] R v Monks (2019) 133 SASR 182 at [32]-[59].
[19] Giordimania v R [2020] SASCFC 28 at [61].
The applicant relies upon the evidence of Dr Young’s assessment and opinion. He submits that his subjective understanding of the wrongfulness of his conduct was impaired by his autism which contributed to his offending. Dr Young’s reports described the difficultly the applicant experienced prior to the second tranche of his offending. Although she accepts the applicant knew the conduct was wrong, he had real difficulty understanding why that was so. Dr Young considered the applicant did not appreciate his conduct was criminally wrong as the production of the child exploitation material was undertaken by others. As a result, he failed to make the connection between direct contact offences and viewing images or videos. Dr Young attributed this difficulty to the applicant’s poor theory of mind associated with his autism. In contrast, once the applicant had attended Owenia House he was able to appreciate the impact of his behaviour more clearly and appropriately.
Dr Young’s opinion was that it was merely possible that the applicant’s offending was related to his autism. The evidence rather suggests that the applicant before, and at the time of this tranche of offending, had an appreciation of the wrongfulness of his conduct. While it is unfortunate that he had been unable to access the programs provided by Owenia House earlier, the fact remains that the sentencing judge had to impose a sentence that reflected all matters relevant to fixing sentence, including the need for general deterrence and the protection of the community.
The first difficulty the applicant’s submission confronts is the proposition that the sentencing judge overlooked the applicant’s cognitive impairment in sentencing. This submission is untenable. As the applicant admits, the sentencing judge did refer to Dr Young’s reports in his sentencing remarks and did consider the applicant’s understanding of his offending.[20] Accordingly, we do not accept that the sentencing judge failed to give any weight to this factor in mitigation of the seriousness of his offending. In these circumstances, the most that can be said is that the sentencing judge failed to give adequate consideration to this matter. As we have explained, that does not disclose error of the House v The King kind.
[20] AB 182-183.
There is no basis to find that the sentencing judge committed a House v The King error. Even allowing for the applicant’s tragic personal circumstances, which reduced the need for a sentence to be imposed reflecting the need for specific deterrence, a vital consideration remained the paramount need for general deterrence. In all the circumstances the sentence imposed was not manifestly excessive. Given the suspension of the sentence imposed by Judge Muscat for the earlier tranche of what was essentially the same offences, we are satisfied the applicant understood the criminal nature of his conduct.
The second difficulty for the applicant lies in Dr Young’s opinion that by reason of his autism, the applicant’s time in prison might be more difficult for him than other prisoners, such that he would be vulnerable in prison and experience difficulties in navigating that environment. Again, this was a factor the sentencing judge plainly considered.[21] In his sentencing remarks there was evidence to which the judge referred to suggest the applicant’s time in custody would be more difficult than other inmates and that his particular psychological makeup increased his vulnerability in custody. We do not accept that the judge did not factor this vulnerability into his sentencing. The judge’s sentencing remarks were sufficient to evidence him weighing this consideration in the exercise of the sentencing discretion and the instinctive synthesis that involves.[22]
[21] AB 174-175.
[22] AB 183-184.
In any event, the applicant has been in custody since 3 December 2024. No attempt was made on this appeal to call any evidence that would establish any particular difficulty that the applicant has actually experienced in the prison environment by reason of his cognitive impairment. Dr Young’s report of 27 July 2024 does not address the applicant’s time in prison which only commenced on 3 December 2024. Her report appears to refer to 7 days the applicant initially spent in custody on remand.[23]
[23] Sentencing remarks of Judge Allen 3 December 2024, AB 185.
We would dismiss ground 1.
Ground 2
The applicant submits that the sentencing judge erred in failing to find that exceptional circumstances existed in the applicant’s case which provided a basis upon which he should not have been sentenced to an immediate term of imprisonment, and as a result, the sentence imposed was manifestly excessive.
We do not accept this submission.
In declining to find the existence of exceptional circumstances the judge exercised an evaluative discretion. Accordingly, in order to succeed on this ground the applicant had to establish a House v The King error. The applicant’s first difficulty is that he has failed to do so. The sentencing judge referred expressly in his sentencing remarks to the factors to be weighed in evaluating the seriousness of the offending and the applicant’s personal circumstances.
The sentencing judge considered the applicant’s personal circumstances. He expressly had regard to the applicant’s autism, attention deficit hyperactive disorder and foetal alcohol syndrome. The judge had regard to the tragic circumstances of the applicant’s upbringing, his poor education, his poor mental health and the treatment he had undergone since the offending, including in particular, the positive treatment at Owenia House. However, those personal circumstances had to be appropriately weighed against the objective seriousness of the offending, including that the child exploitation material, the basis of his offending, was of a serious kind and that he had already been convicted for the same offences.[24] The second offending commenced when he was on a suspended sentence bond for the first offending as well as other uncharged conduct. The applicant submits that nonetheless his personal circumstances are compelling and exceptional however, the substantive offending in this matter was committed in breach of a suspended sentence bond for the earlier offending, and in breach of his reporting obligations. We do not accept that the breach of the bond could be excused as trivial. It therefore follows that s 114(1)(d) of the Act imposed a positive obligation on the Court to revoke the suspension and order that the sentence be carried into effect. There was no dispute that this had to occur. The offence of disseminating child exploitation material is a serious sexual offence as defined in s 96(9) of the Act. As such, s 96(3)(ba) of the Act precluded the sentencing judge from suspending any term of imprisonment imposed for that offence in any event. As a result, an immediate custodial sentence was inevitable.
[24] R v De Leeuw [2015] NSWCCA 183 at [72].
Plainly, these matters weighed heavily and correctly on the judge in imposing sentence. They necessarily reduced the scope for leniency. A refusal to impose an immediate term of imprisonment would have been contrary to law and would have resulted in a manifestly inadequate sentence. Given the inevitability of an immediate custodial penalty, it was not necessary for the sentencing judge to make a determination as to the exceptionality of the applicant’s personal circumstances. This is reflected in the fact that the applicant’s counsel on sentencing did not put a submission to the sentencing judge that he should find his client’s circumstances were exceptional.
The second difficulty the applicant confronts is his concession that the sentence imposed fell within the range of appropriate sentencing for this offending.
We would dismiss ground 2.
Conclusion
The sentencing judge has not committed specific or outcome error justifying the intervention of this Court.
We would refuse the application for leave to appeal. In the circumstances there is no utility in granting an extension of time.