STEELE v THE KING [2026] SASCA 47

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE MUSCAT) DCCRM-24-010566 Appellant: ANDREW DONALD STEELE Counsel: MR A CULSHAW - Solicitor: CALDICOTT AND ISAACS LAWYERS Respondent: THE KING Counsel: MS L BOORD SC WITH MR J WILSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Hearing Date/s: 20/11/2025 File No/s: SCCRM-25-009021 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. STEELE v THE KING [2026] SASCA 47 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Stanley) 1 May 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - TO ADMIT NEW EVIDENCE CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE CRIMINAL LAW - EVIDENCE - OPINION EVIDENCE - EXPERT OPINION This is an application for permission to appeal against sentence. On 8 November 2024 the appellant was sentenced to 15 years’ imprisonment, with a non-parole period of nine years. The sentence followed his guilty pleas to seven charges against the Criminal Code Act 1995 (Cth), comprising one count of engaging in persistent sexual abuse of a child outside of Australia, two counts of engaging in sexual activity with a child outside of Australia, and four counts involving the use, distribution and possession of child abuse material. The contact offending was of a most serious kind, involving the sexual abuse of young children and the exploitation of their circumstances of dire poverty. -- 1 of 18 -- In sentencing, the judge considered the opinion of Dr Loraine Lim in a psychological report dated 13 August 2024. Relevantly, the Director did not challenge any aspect of that report, rather she embraced its contents. The report was based on a hypothesis as to the genesis of the appellant’s sexual interest in children (the Lim hypothesis), which included the expert opinion that “the adrenaline rush and pleasurable effects that he had achieved from such conduct when he was in the emerging stages of puberty, had likely functioned as an emotional escape and as a self-soothing mechanism….” which “resulted in a situation where the mechanisms that led to sexual arousal, in their various forms, had subsequently become [the appellant’s] primary emotional coping strategy whenever he was feeling bored, in [distress], or sexually unfulfilled”. The judge did not accept the Lim hypothesis and did not put the appellant on notice of that rejection. In fixing sentence, the judge identified nominal sentences for each offence, discounted each by 20 per cent to reflect the appellant’s guilty pleas and cooperation, and, in applying the principle of totality, ordered the sentence be partially concurrent in arriving at the total head sentence. At issue on appeal is ultimately whether the appellant was afforded procedural fairness. The appellant says that he was not. He complains of inadequacy in the judge’s approach to Dr Lim’s report, and shortcomings in his Honours’ reasoning; alleging an absence of logic for rejecting Dr Lim’s opinions, and a failure to find that the Lim hypothesis was relevant to the sentencing task. The appellant, on appeal, submits that the Lim hypothesis was relevant to sentence in two respects: first, to his prospects of rehabilitation, and secondly, to his moral culpability. On appeal, an addendum report by Dr Lim, dated 10 October 2025, was tendered as fresh evidence. In the circumstances, the Court considered it appropriate to admit the report. The appellant submitted that the addendum report addresses the judge’s concerns and criticisms of the initial report, and provides the response that could have been given by Dr Lim, before the judge, had his Honour put the appellant on notice of his rejection of the Lim hypothesis. Held, per the Court, granting permission to appeal, but dismissing the appeal: 1. As the application of procedural fairness is directed to the avoidance of practical injustice, the critical question is whether the appellant lost a realistic possibility of a more favourable outcome. In the circumstances of this case, he has not. 2. Although the judge did not put the appellant on notice that he did not accept the Lim hypothesis, that omission did not occasion actual unfairness in circumstances where: a. A sentencing judge is not bound to accept unchallenged expert opinion evidence; b. The addendum report added little to the material which was before the judge; c. The offending was of a most serious kind, involving the sexual abuse of young children, facilitated by the exploitation of their circumstances of dire poverty; and d. The judge had observed that, even if he had accepted the Lim hypothesis, it would not have mitigated the appellant’s offending. 3. It follows that, while it would have been preferable that the judge put the appellant on notice of his rejection of the Lim hypothesis, the Lim hypothesis did not bear upon the appellant’s prospects of rehabilitation or his risk of reoffending. 4. Rather, as explained in the addendum report, the hypothesis was directed to contextualising the appellant’s offending conduct by identifying the mechanisms contributing to his behaviour so as to inform treatment and risk management. 5. Such that, as the judge found, it is difficult to see how the proffered explanation as to how the appellant became sexually attracted to children could diminish the seriousness of his offending, his moral culpability, or reduce the importance of the sentencing objectives. -- 2 of 18 -- 6. Ultimately, the judge’s rejection of the Lim hypothesis, and his Honour’s finding that the Lim hypothesis was fanciful cannot be considered illogical. 7. There is no miscarriage of justice because there is no basis to find that if notice of rejection had been given it would have made a difference to the sentence imposed. 8. While the sentence imposed is severe, it is warranted and within the range permissibly open. It should not be interfered with. Criminal Code Act 1995 (Cth) ss 272.9(1), 272.11(1), 273.6(1), 474.22(1), 474.22A, referred to. Chung v Anderson [2004] NSWCA 321; Kentwell v The Queen (2014) 252 CLR 601; Primmer v The Queen [2015] NSWCCA 155; Weir v The Queen [2011] NSWCCA 123, applied. DL v The Queen (2018) 265 CLR 215; HT v The Queen (2019) 269 CLR 403; Murphy (a pseudonym) v The King (2023) 311 A Crim R 44; R v Fresiello (2020) 137 SASR 258; R v Lobban (2001) 80 SASR 550, discussed. Athans v R (2022) 300 A Crim R 339; Dent v The King [2025] NSWCCA 43; House v The King (1936) 55 CLR 499; R v C (2004) 89 SASR 270; R v McIntee (1985) 38 SASR 432, considered. -- 3 of 18 -- -- 4 of 18 -- STEELE v THE KING [2026] SASCA 47 Court of Appeal - Criminal: Bleby, David and Stanley JJA THE COURT: Introduction 1 This is an application for permission to appeal against sentence. The appellant, Andrew Donald Steele, pleaded guilty to seven charges against the Criminal Code Act 1995 (Cth) (the Code). Those charges were: (i) one count of engaging in persistent sexual abuse of a child outside of Australia contrary to s 272.11(1);1 (ii) two counts of engaging in sexual activity with a child outside of Australia contrary to s 272.9 (1);2 (iii) two counts of using a carriage service for child abuse material contrary to s 474.22(1);3 (iv) one count of distributing child abuse material outside of Australia contrary to s 273.6(1);4 and (v) one count of possession or control of child abuse material held on a computer or data storage device contrary to s 474.22A.5 The offending 2 The contact offences6 relate to two sisters in the Philippines, CR and CH. At the time of counts 1 and 2, which occurred simultaneously, CR was nine years of age, and CH was five or six. Counts 1 and 2 were committed in about 2018. 3 The offence of persistent sexual abuse7 relates to CR. Count 1 was partially comprised of sexual activity the appellant engaged in with CR, including masturbation and fellatio, in the Philippines. Count 1 also comprised seven video calls involving sexual activity which included nudity, and both the appellant and CR masturbating on different occasions. 1 Count 1. 2 Counts 2 and 4. 3 Counts 3 and 5. 4 Count 6. 5 Count 7. 6 Counts 1, 2 and 4. 7 Count 1. -- 5 of 18 -- [2026] SASCA 47 The Court 2 4 CH was present when the sexual activity in the Philippines took place. Her presence amounted to “sexual activity” for the purposes of the Code. It was her presence which comprised count 2. 5 The other charge of engaging in a sexual activity was count 4. It related to a video call with CR when she was aged about 14. CR was clothed and the appellant was masturbating. 6 The other four counts relate to child abuse material. Between 2022 and 2023 the appellant visited websites containing child abuse material on 3,000 to 4,000 occasions.8 7 In March and April 2023 the appellant sent 19 images of child abuse material and had text-based child abuse communications with another person.9 During that time, he also sent one image and engaged in further text-based child abuse communications with the same person from outside Australia.10 The police also discovered the appellant was in possession of between 12,000 and 13,000 items of child abuse material, obtained or accessed using a carriage service, including both images and videos.11 Background 8 In his sentencing remarks the judge set out the particulars of the appellant’s offending. The appellant met many overseas women online. His Honour said that the appellant developed an appetite for child abuse material and used the internet to access and view images of child pornography from at least 2016 or 2017. Through these online connections the appellant met CR and CH’s mother, T. T provided the appellant with a video of the girls dancing. The appellant immediately became sexually attracted to CR. In 2018 the appellant travelled to the Philippines to meet T and her children. The judge was satisfied that the purpose of travelling to the Philippines was to engage in physical sexual activity with CR. The appellant spent a month in the Philippines during which time he shared a bed while naked with T and her children. 9 During that time the appellant directed CR to masturbate him and to perform fellatio upon him, which she did, until he ejaculated. The appellant sought to engage in penile/vaginal sexual intercourse with CR, but T would only permit CR to masturbate and fellate the appellant. CH witnessed this sexual abuse occurring. The appellant derived heightened sexual gratification from CH’s presence. CH said that she saw the appellant in bed with her mother and sister while the appellant directed each of them to take hold of his penis and to take turns masturbating him before they also took turns fellating him. 8 Count 3. 9 Count 5. 10 Count 6. 11 Count 7. -- 6 of 18 -- [2026] SASCA 47 The Court 3 10 After his return to Australia the appellant engaged in video calls with CR. Police discovered seven such calls. The numerous screenshots of the first call show CR lying on a blanket. She is either partially or fully naked with numerous screenshots focussing on her breasts. The appellant was at least partially naked during this call. The second call is associated with the discovery of around 115 screenshots containing similar material. The third and fourth calls are associated with over 130 screenshots of CR on several occasions in which she is masturbating at the direction of either the appellant or someone else. The 150 screenshots associated with the fifth call depict material very similar to the first call. The 48 screenshots associated with the sixth call depict CR masturbating. The 19 screenshots associated with the seventh call involves CR wearing headphones. She is either partially or fully naked. 11 During September of 2018 T asked the appellant for money to replace a phone. The appellant agreed on the condition that T would send him photographs, which the judge found referred to photographs of T and CR’s vaginas. The appellant also sent money to T to enable her to purchase vibrators for T and CR to use while he watched via webcam. 12 In either 2021 or 2022 a typhoon hit the Philippines causing widespread damage. The appellant was contacted by T who sent him photographs of the destruction, and asked him for money. The appellant took the opportunity to video call CR and masturbate. Apparently T’s request for money became persistent leading to the appellant ending all communication with her, CR and CH by the end of 2022. 13 Over the period of a year from 2022 to 2023 the appellant visited two known child abuse websites on 3,679 occasions. The appellant developed an online relationship with another woman in the Philippines. The appellant sent this woman 19 image files of child abuse material and spoke with her about the type of child sexual abuse he fantasised about. Some of his fantasies depicted extremely young girls being raped. 14 In 2023 the appellant travelled to Indonesia. Upon his return Border Force officers at the airport selected his luggage for examination. An image of a pre- pubescent girl exposing her breasts was found on the appellant’s phone. The next day police officers searched the appellant’s home and seized multiple electronic devices belonging to the appellant which contained evidence of his offending. Some of the evidence found on those devices led to the investigation into the activities involving T and her children. On his phone were a series of screenshots of a video call between the appellant and CR. CR appears to be about 14 years of age. It is clear from the video that the appellant was masturbating. 15 Across his electronic devises there was child sexual abuse material depicting the use of physical restraints against children such as rope, duct tape, handcuffs, gags, collars and blindfolds. Other material found predominantly depicted very young girls being raped in various ways by men. On a Kingston Data Traveler -- 7 of 18 -- [2026] SASCA 47 The Court 4 USB Police also found images predominantly depicting animations of pre- pubescent girls being raped in various ways by men, commonly involving depictions of bondage. The judge found the videos on the USB were almost exclusively of real children between the ages of five and 12 years. A smaller portion of the material depicted pre-pubescent girls engaging in masturbation, or blindfolded while being sexually abused and ejaculated upon. 16 As we have said, the appellant was found to ultimately be in possession of between 12,000 to 13,000 items of child sexual abuse material. The astonishing quantity of child sexual abuse material evidences how widespread the crimes committed are, not only by the appellant, but by so many depraved individuals in Australia and internationally. It requires denunciation in the strongest terms. 17 The offending in the Philippines against CR and CH involved the exploitation of the desperate poverty of the children and their mother. That offending was made possible by the appellant’s corruption of their mother to facilitate his offending. 18 In sentencing the judge identified nominal sentences for each offence, each of which was discounted by about 20 per cent for the appellant’s guilty plea and cooperation with the investigation. The nominal sentences for counts 5 and 6 were treated as wholly concurrent. The total of the nominal sentences for each offence, if his Honour ordered the sentences be served cumulatively, was around 20 years and three months. The judge took the view that such a total sentence was disproportionate and made the sentences partially concurrent so as to impose a total head sentence of 15 years’ imprisonment. A non-parole period of nine years was fixed. The psychological evidence and its relevance to the sentencing process 19 Although the appellant alleges three particulars to the single ground of appeal, at the heart of the complaint is the want of procedural fairness in relation to, what he says is the inadequacy of the judge’s approach to the psychological evidence, and shortcomings in his Honour’s reasoning. 20 The appellant complains that he was denied procedural fairness in the sentencing process by an alleged failure of the judge to indicate that he did not accept the expert opinion of Dr Loraine Lim in a psychological report dated 13 August 2024. 21 The appellant complains he was denied procedural fairness in the judge rejecting an aspect of Dr Lim’s report without giving notice to defence counsel that he intended to do so in circumstances where the Director had not only not challenged any aspect of the report but had indicated that she embraced Dr Lim’s report. Dr Lim’s Reports 22 Dr Lim produced two reports. The first in August 2024, and the second (the addendum report) on 10 October 2025 after the appellant was sentenced. -- 8 of 18 -- [2026] SASCA 47 The Court 5 23 Dr Lim’s first report was based on a hypothesis that the genesis of the appellant’s offending could be traced to sexual deviancy during puberty when he would spy on his sisters while they were in the shower. Dr Lim said that: … the adrenaline rush and pleasurable effects that he had achieved from such conduct when he was in the emerging stages of puberty, had likely functioned as an emotional escape and as a self-soothing mechanism from the conflicts that he was having with his brother at home and his social / emotional challenges at school. In turn, this would have resulted in a situation where the mechanisms that led to sexual arousal, in their various forms, had subsequently become [the appellant’s] primary emotional coping strategy whenever he was feeling bored, in [distress], or sexually unfulfilled. And over time, he would have had to resort to an increasingly high level of sexual depravity in order to achieve the same level of arousal, hence his development of a sexual interest in children. 24 The appellant now submits that this explanation, being Dr Lim’s hypothesis or theory as to the genesis for the development of the appellant’s sexual interest in children (the Lim hypothesis), was relevant to the sentencing process in two ways: (i) First, it was relevant to the appellant’s prospects of rehabilitation, as an understanding of the source of his sexual interest in children permits insight, and in turn would advance his rehabilitation; and (ii) Second, it was relevant to the appellant’s moral culpability. While the development of an emotional coping strategy leading to an increasing level of sexual deviancy in no way excuses the appellant’s offending, it does put that offending into a less morally culpable category than conduct that was unexplained other than by purely gratuitous behaviour. 25 The appellant submits that Dr Lim’s opinion was embraced by the Director, and there was no suggestion by the judge during the course of submissions that it would not be accepted. 26 The judge in delivering his sentencing remarks said:12 I do not accept that your sexual arousal in the various forms at that time in your life as described had become your primary emotional coping strategy whenever you were feeling bored, distressed or sexually unfulfilled, as Dr Lim stated, and that over time, you would have had to resort to increasingly higher levels of sexual deviancy in order to achieve the same level of arousal, as being the explanation for the development of your sexual interest in children. First, you have not attributed your sexual attraction to children to your childhood experiences, and, secondly, I find such a theory fanciful. Dr Lim has not supported her theory through any literature or studies. It is just as likely that your sexual interest in children is innate. 27 The judge also said:13 12 Summing Up p 11. 13 Summing Up p 11. -- 9 of 18 -- [2026] SASCA 47 The Court 6 Even if I had accepted Dr Lim's theory, it would not mitigate your offending conduct. The proffered explanation for how you became sexually attracted to children does not in any way diminish the seriousness of the offending conduct nor reduce the importance of the sentencing objectives for such offences. 28 The appellant takes issue with those remarks of the judge, specifically the passage above where his Honour begins “Even if I had accepted…”. The appellant accepts that although the judge was correct, insofar as he went to say that Dr Lim’s explanation did not diminish the seriousness of the offending nor reduce the importance of the sentencing objectives, those two matters did not cover the field regarding the relevance of the psychological evidence. 29 The appellant submits that it could well be the case that no psychological evidence would ever be capable of either diminishing the seriousness of the offending or reducing the importance of statutory sentencing objectives. He submits that it might be that the judge drew a distinction between matters of mitigation and matters that are relevant to sentence, which may have operated in the appellant’s favour. He submits that if there is such a distinction, the relevant aspect of Dr Lim’s report fell into the latter category. 30 On the other hand, if there is no such distinction, then he submits the judge was wrong to hold that the only way psychological evidence could be relevant to sentence would be to undermine the seriousness of the offending, or to reduce the importance of sentencing objectives in a particular case. He submits that if that was the judge’s reasoning, it set an impossible bar to clear. 31 The appellant submits the Lim hypothesis was relevant to the court’s task in sentencing. He submits that it was necessary that it be dealt with correctly, including by affording procedural fairness to the appellant in respect of it. Ultimately, he submits that the judge erred in his treatment of the relevant aspects of Dr Lim’s report. 32 For the reasons that follow, the appellant’s submission should not be accepted. It is largely speculative. Even so, that does not necessarily exclude the appellant being denied procedural fairness. 33 The appellant submits that Dr Lim’s addendum report sets out the response that could have been given in respect of the judge’s concerns had any doubt been expressed about the opinions of Dr Lim set out in her first report. In response to the specific criticisms made by the judge of the opinions in Dr Lim’s first report, Dr Lim in her addendum report said it was not unusual for offenders to fail to recognise the relationship between their formative experiences and the development of deviant arousal patterns; cited academic literature supporting her opinions; and explained that there was no neat dichotomy between the development of the appellant’s deviant arousal patterns and those patterns being innate. -- 10 of 18 -- [2026] SASCA 47 The Court 7 34 The appellant submits that this Court should receive as fresh evidence the addendum report as evidence of those matters that could have been placed before the judge in the exercise of the sentencing discretion had the appellant been placed on notice by the judge of the fact and basis of his Honour’s rejection of Dr Lim’s opinion as to the cause of the appellant’s sexual interest in children. Principles of procedural fairness 35 In HT v The Queen14 the High Court addressed the application of the principle of procedural fairness as follows:15 It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding. This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is made be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case. In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made. Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise. [citations omitted]. 36 What is required by way of procedural fairness at a sentencing hearing is not, and cannot be, the subject of an inflexible rule. In R v Lobban,16 Martin J, with whom Mullighan and Bleby JJ agreed, observed that where a dispute arises as to the facts relevant to sentence, there can be no unfairness in the judge failing to indicate a view during submissions. An offender is on notice of the dispute when a position contrary to that of the offender's is being urged upon the judge. 37 Where no issue is joined, however, the situation is different. Martin J observed:17 Different considerations may apply if specific issue has not been joined between the prosecution and an offender. As the majority of the High Court pointed out in a joint judgment in R v Olbrich, there is no general issue joined between the prosecution and an offender in sentencing proceedings. In my view, in the absence of specific joinder, the potential for unfairness exists. … 14 (2019) 269 CLR 403. 15 HT v The Queen (2019) 269 CLR 403 at [17]-[18]. 16 (2001) 80 SASR 550 at [17]. 17 R v Lobban (2001) 80 SASR 550 at [18] and [21]. -- 11 of 18 -- [2026] SASCA 47 The Court 8 There can be no inflexible rule. Each case must be determined according to its particular circumstances. The critical question is whether an offender, by some means, is on notice that a submission advanced in mitigation might not be accepted by the sentencing judge. [citation omitted]. 38 In R v Fresiello,18 Kourakis CJ, with whom Peek and Blue JJ agreed, observed:19 Prosecutors generally expressly challenge submissions in mitigation which they consider to be improbable. Judges commonly alert defence counsel if they are unlikely to accept a submission from the bar table… it should now be accepted that if a mitigatory explanation is likely to be substantially rejected if not supported on oath, the defendant should, as a general rule, be put on notice. 39 It can be accepted that those cases relate specifically to a mitigatory version of the facts of the offending, however there is no reason in principle for a different approach to be taken to the provision of expert psychological opinion in the sentencing process. In the trial context, this Court20 has held:21 Implicit … is the proposition that the proposed “mental processes” of a trier of fact will not usually be revealed, and this works no denial of procedural fairness. Fairness does not necessarily require that a judicial officer forewarn a party about all possible reasons for failure. Having said that, it is necessary that a trial judge articulate any key criticisms of expert opinion evidence, at least where they are not obvious or have not already been articulated by the opposing party in cross-examination. Whilst that will usually be done in final address, it may need to be done before cross-examination is concluded. [citation omitted]. 40 In DL v The Queen22 the High Court explained that where a judge, or an appellate court, in the case of resentencing, is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court. 41 Although there is no immutable rule, the appellant submits that where unchallenged and relevant psychological evidence is before a sentencing court, procedural fairness requires the judge to put a defendant on notice if the judge is minded to reject the evidence. In this case, that submission should not be accepted. 18 (2020) 137 SASR 258. 19 R v Fresiello (2020) 137 SASR 258 at [33]. 20 Livesey P, Lovell JA and Buss AJA. 21 Murphy (a pseudonym) v The King (2023) 311 A Crim R 44 at [163]-[164]. 22 (2018) 265 CLR 215 at [39]. -- 12 of 18 -- [2026] SASCA 47 The Court 9 42 As the Director submits, the concern of the law is to avoid practical, not merely theoretical, injustice.23 In determining whether there has been a denial of procedural fairness, the question is whether the appellant lost a realistic possibility of a more favourable outcome.24 43 Earlier in these reasons25 we set out the two reasons the appellant submits explains why the development of the appellant’s sexual interest in children was relevant to the sentencing process, namely, to enhance his prospects of rehabilitation by understanding the cause of that sexual interest and by placing his offending in a less morally culpable category. 44 The appellant submits the practical effect of the denial of procedural fairness is demonstrated by the content of Dr Lim’s addendum report. That submission should not be accepted. The Director does not accept that the Dr Lim addendum report, if adduced, would have an important influence or bearing on the outcome or, at the very least, substantially alter the relative weight of the material that was before the judge.26 Accordingly, the Director contends that the addendum report should not be received as fresh evidence. However, the Director has no objection to the Court inspecting the addendum report in order to satisfy itself that the report adds little or nothing to the material which was before the judge.27 We consider that in the circumstances it is appropriate to admit the addendum report in order to allow the Court to evaluate whether the appellant was prejudiced by the failure of the judge to notify counsel for the appellant that he did not accept Dr Lim’s opinion as set out in her first report. 45 The Director highlights the following aspects of the addendum report which she says tends to undermine the appellant’s submission that he was prejudiced by the failure of the judge to put him on notice that he did not accept Dr Lim’s opinion in her first report. It was in that report that Dr Lim set out her hypothesis which explained the development of the appellant’s sexual interest in children. However, in the addendum report, Dr Lim clarified that her diagnosis of paedophilic disorder implies an innate sexual predilection towards pre-pubescent children,28 which is precisely what the judge considered to be just as likely as the Lim hypothesis.29 Dr Lim explained that she believes that the appellant’s learned sexual coping behaviours had interacted with, and amplified, his innate sexual predisposition. At no stage does Dr Lim suggest that the explanation for the emergence and maintenance of his deviant sexual behaviour was relevant to an assessment of the risk of reoffending and/or prospects of rehabilitation. 23 Weir v The Queen [2011] NSWCCA 123 at [64]-[67]. 24 Dent v The King [2025] NSWCCA 43. 25 Paragraph 24 of these reasons. 26 R v C (2004) 89 SASR 270 at [32]-[34]. 27 This approach was adopted by the Court in R v McIntee (1985) 38 SASR 432 at 435, referred to in Athans v R (2022) 300 A Crim R 339 at [24]-[29]. 28 Addendum report p 5, AB 102. 29 Sentencing remarks p 11, AB 158. -- 13 of 18 -- [2026] SASCA 47 The Court 10 46 On the contrary, in the addendum report Dr Lim said the purpose of proffering the hypothesis was to identify the psychological mechanisms that contributed to his behaviour and to inform appropriate treatment and risk management strategies.30 47 While it can be accepted that the purpose of proffering the hypothesis was to identify the psychological mechanisms that contributed to the appellant’s behaviour, which can inform appropriate treatment decisions and assist in the identification of appropriate risk management strategies, which may have the potential to inform the risk of reoffending and/or prospects of rehabilitation, we reiterate that Dr Lim did not say that this was the case. Further, nothing had been done in that regard by the time of sentencing. 48 Further, the addendum report identified that the appellant possessed limited insight into the emotional drivers of his paedophilic proclivities.31 Dr Lim suggested that the appellant’s limited insight into the aetiological and maintaining factors of his offending “represents a significant dynamic risk factor and criminogenic need, as it would directly affect his capacity to recognise precursors to offending and to implement self-regulatory strategies”.32 It is these risk factors which contribute to Dr Lim’s opinion that the appellant’s risk of sexual recidivism falls within the higher range.33 49 However, it is the appellant’s acknowledgment of his sexual interest in children and his wish to control his sexual urges and engage in sex offending specific therapy which Dr Lim considers is a positive prognostic indicator,34 albeit, one that has to be counterbalanced against the appellant’s entrenched deviant arousal pattern, his limited insight into the origins of his deviant arousal pattern, and the limited offence specific treatment provided to date. 50 While in her addendum report Dr Lim said her diagnosis of the appellant having a paedophilic disorder implied an underlying or innate sexual predilection,35 and that the appellant’s overall risk of sexual recidivism remained elevated,36 she considered his “willingness to engage in intervention represents a significant protective factor”,37 such that it is a positive sign. Nonetheless, the addendum report did not establish how the two reasons explained why the development of the appellant’s sexual interest in children was relevant to the sentencing process. 30 Addendum report p 6, AB 103. 31 Addendum report p 3 and 6, AB 100 and 103. 32 Addendum report p 4, AB 101. 33 Addendum report p 4, AB 101. 34 Dr Lim’s first report pp 10-11, AB 93-94. 35 Addendum report p 5, AB 102. 36 Addendum report p 7, AB 104. 37 Addendum report p 7, AB 104. -- 14 of 18 -- [2026] SASCA 47 The Court 11 51 Ultimately the Director submits that there was no procedural unfairness as a result of the course adopted by the judge because it did not deprive the appellant of a realistic possibility of a more favourable outcome. We accept this submission. Are the trial judge’s reasons illogical, and did he fall into error in his assessment of the relevance of Dr Lim’s opinion? 52 Although the appellant characterised the appeal as being focussed on the denial of procedural fairness, it is necessary to address the other particulars that supplement the complaint of a denial of procedural fairness, namely, the absence in logic for rejecting Dr Lim’s opinions in her first report and the failure to find that the Lim hypothesis was relevant to the sentencing task by weighing the appellant’s prospects of rehabilitation and the concomitant risk of reoffending. 53 The complaints made in those particulars cannot be accepted. 54 The appellant submits the judge erred in that his reasons for rejecting the Lim hypothesis was illogical. 55 The judge rejected the Lim hypothesis, which sought to explain how the appellant became sexually attracted to children. The judge did not accept that from puberty the appellant’s sexual arousal had become his primary emotional coping strategy whenever he was feeling bored, distressed or sexually unfulfilled. Finding that the appellant failed to recognise the existence of a relationship between his formative experiences and the development of his deviant arousal patterns, and finding nonetheless that such a theory is fanciful, does not render the judge’s rejection of the Lim hypothesis illogical. On the contrary, there is nothing obviously illogical in the judge’s conclusion that it was equally likely his deviant sexual arousal was innate. So much was conceded by his counsel, which we will return to, and ultimately found by Dr Lim. For the same reasons the judge’s finding that the Lim hypothesis was fanciful cannot be considered illogical, based as it is on the judge’s reasons for concluding that it is just as likely that the appellant’s sexual interest in children is innate. 56 It is useful to reiterate here that in her first report Dr Lim considered that the appellant appeared to have developed an early predilection towards sexual deviance from the time he reached puberty.38 The addendum report further clarified that the appellant had an underlying or innate sexual predilection toward pre-pubescent children.39 In any event, a sentencing judge is not bound to accept the opinions of expert witnesses even where there is no challenge to those opinions.40 In these circumstances, the judge’s finding that it was just as likely that the appellant’s sexual interest in children is innate is not speculative. 38 Dr Lim’s first report p 13, AB 96. 39 Addendum report p 5-6, AB 102-203. 40 Primmer v The Queen [2015] NSWCCA 155 at [31]; Chung v Anderson [2004] NSWCA 321 at [137]. -- 15 of 18 -- [2026] SASCA 47 The Court 12 57 At no stage did either the appellant’s counsel or Dr Lim suggest that the Lim hypothesis was relevant to the appellant’s risk of re-offending, or prospects of rehabilitation. Instead, as Dr Lim stated in the addendum report, her hypothesis was intended to contextualise the appellant’s offending conduct by identifying the physiological mechanisms that contributed to his behaviour which would inform appropriate treatment and risk management strategies.41 While Dr Lim considered the appellant’s acknowledgment of his sexual interest in children and his expressed wish to control his sexual urges and engage in sex offending specific therapy as a positive prognostic indicator, she did not suggest that made the appellant either less likely to reoffend, or a better candidate for rehabilitation. Rather, her hypothesis, if accepted, was relevant to the treatment strategies that would be required to enable the appellant to recognise precursors to offending and to implement self-regulatory strategies. On one view, the entrenched nature of the appellant’s use of sexual arousal in relation to deviant materials as a primary method of emotional escape and self-soothing, proffered by the Lim hypothesis, would only serve to reinforce the significant shift in the appellant’s behavioural patterns required in order to moderate his risk of reoffending.42 58 In any event, both the judge43 and Dr Lim were appropriately guarded about the ability to make a proper assessment of the appellant’s prospects of rehabilitation, or risk of reoffending, in circumstances where, at the time of sentence, he had not had the opportunity to engage in therapy to mitigate against his deviant sexual attitudes towards children, and effectively to reduce his risk of sexual recidivism for both contact and non-contact offences.44 59 To the extent that the appellant now argues that the Lim hypothesis moderated the appellant’s moral culpability, which is one of the other bases claimed to be relevant to the sentencing process, that argument finds no support in either report of Dr Lim. Neither did the appellant’s counsel on sentencing seek to rely upon it as having the capacity to moderate his moral culpability. In the course of sentencing submissions, the appellant, having noted the nexus between his paedophilia and his offending, submitted that moderate weight only ought to be given to this connection insofar as it represents some explanation for the offending, namely the appellant’s deviancy, sexual predilection, and the need to pursue increasingly deviant conduct to achieve arousal.45 60 It is unclear how, in the circumstances of this case, the moral culpability of the appellant’s conduct, which included the persistent exploitation of a family’s poverty, and the vulnerability of the mother of young children to corrupt her by allowing the appellant to sexually abuse her daughter(s) for money could in any 41 Addendum report p 6, AB 103. 42 Addendum report, p 3-4, AB 100-101. 43 Sentencing remarks p 14, AB 161. 44 Dr Lim’s first report, p 14, AB 97. 45 Written submissions of defence (DCCRM-24-010566), FDN 29, at [29], AB 82. -- 16 of 18 -- [2026] SASCA 47 The Court 13 way be moderated by a suggestion that the appellant’s deviant, paedophilic tendencies, may have represented a method of emotional escape or self-soothing. 61 While the judge should have put the appellant on notice that he rejected the Lim hypothesis, in this case, that has not resulted in a miscarriage of justice. There is no miscarriage of justice because there is no basis to find that if such notice had been given it would have made a difference to the sentence imposed. There is no material before this Court that would support a conclusion that the appellant could have persuaded the judge to impose a more favourable sentence. The judge observed that, even if he had accepted the Lim hypothesis, it would not have mitigated the appellant’s offending. Ultimately, the proffered explanation as to how the appellant became sexually attracted to children, which he acted on, did not diminish the seriousness of his offending, his moral culpability, nor reduce the importance of the sentencing objectives for such offending,46 namely, specific and personal deterrence, and denunciation. 62 Further, any explanation as to when and how the appellant became interested in children was not, in the circumstances of this case, relevant to an assessment of his risk of reoffending or prospects of rehabilitation, and again, nor does it possess the capacity to reduce his moral culpability. In that regard, it is relevant to return to the submission of the appellant’s counsel to the sentencing judge that the appellant had always been sexually attracted to children although he did not always act upon it.47 It is difficult to see how that means anything other than that the appellant’s sexual attraction to children is innate. As we have said, so much was accepted by Dr Lim. Accordingly, it is difficult to understand how it could be that the issue of when and how the appellant’s sexual interest in children developed, in any way moderated his moral culpability. Conclusion 63 The application of the principle of procedural fairness is case specific and contextual. The key to determining whether there has been a denial of procedural fairness in a particular case is to identify and consider the consequence of any departure from the rubric of correct procedure. What is ultimately in issue is whether the process has occasioned the appellant actual unfairness.48 64 It follows that in this case it is difficult to see how the judge’s failure to put the appellant on notice that he rejected the Lim hypothesis resulted in actual unfairness to the appellant. In our view, while it would have been preferable that the judge put the appellant on notice that he did not accept the Lim hypothesis, in the particular circumstances of this case, that did not deprive the appellant of the chance of obtaining a more favourable sentence than was imposed. Accordingly, no error in sentencing has been disclosed. 46 Sentencing remarks at 11, AB 158. 47 Transcript of proceedings (DCCRM-24-010566),14 August 2024, T18.28-31. 48 Weir v The Queen [2011] NSWCCA 123 at [64]. -- 17 of 18 -- [2026] SASCA 47 The Court 14 65 Even if we had arrived at a different conclusion, and were satisfied that the sentence is infected by a House v The King49 process error, we would nonetheless, in the exercise of our independent discretion, determine that the existing sentence is the appropriate sentence for this offender and this offence. The sentence imposed is within the range permissibly open to the judge for the overall offending. No complaint is made that it is manifestly excessive. However, it can be accepted, as the appellant submits, that the sentence is severe. A severe sentence is warranted. This was offending of the most serious kind, committed in circumstances difficult to detect, particularly where some of the offences were committed outside Australia and involving, as we have said, the sexual abuse of young children, facilitated by the corruption of their mother through the exploitation of their circumstances of dire poverty. The need for general deterrence loomed large. This offending occurred over many years. The extent of the damage to the children is incalculable. It calls for condign punishment. 66 Nonetheless, the judge, in formulating sentence, had substantially moderated the notional sentence for each offence by 20 per cent to reflect the appellant’s cooperation in the investigation of his offending and early pleas of guilty. The judge applied the principle of totality, and made the sentences partially concurrent so as to impose a total head sentence of 15 years’ imprisonment. Even if we were satisfied the sentence was infected by error, we would not have interfered by imposing a lighter sentence in accordance with the principles in Kentwell.50 Order 67 Permission to appeal is granted but the appeal dismissed. 49 (1936) 55 CLR 499. 50 Kentwell v The Queen (2014) 252 CLR 601. -- 18 of 18 --