KURTIS SAIGE MIETTUNEN v THE KING [2026] SASCA 5

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) DCCRM-24-030943 Appellant: KURTIS SAIGE MIETTUNEN Counsel: MR G KATSARAS - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: THE KING Counsel: MR R WILLIAMS SC WITH MR J WILSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Hearing Date/s: 13/08/2025 File No/s: SCCRM-24-048787 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. MIETTUNEN v THE KING [2026] SASCA 5 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice David and the Honourable Justice Stanley) 12 February 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - TERM OF SENTENCE WHERE APPEAL, CASE STATED, ETC This is an application for permission to appeal against sentence. On 19 November 2024, the appellant, Mr Miettunen, was sentenced to a term of imprisonment of five years and six months, with a non-parole period of two years and nine months, in respect of three offences involving child abuse material contrary to the Criminal Code Act 1995 (Cth), being counts 10, 11 and 12. At the time of sentence, the appellant was 24 years old. He had experienced a highly traumatic early childhood and was assessed as having a lower than average cognitive capacity. In sentencing, the primary judge erred by proceeding on the basis that; 1. he was precluded from reducing the sentence imposed on count 11 for the appellant’s pleas of guilty and/or cooperation with law enforcement agencies, unless the offending fell within, or close to, the least worst possible case for an offence of that kind; 2. if s 16AAC of the Crimes Act 1914 (Cth) was not engaged, no reduction could be afforded for the pleas of guilty and/or cooperation for the sentence imposed on count 11; and -- 1 of 17 -- 3. a consequence of the Parliament fixing a mandatory minimum sentence is that any other sentence must be cumulative on that sentence. Those process errors enlivened the Court of Appeal’s power to intervene and resentence, unless it was satisfied, in the separate and independent exercise of its discretion, that no different sentence should be passed. The correct approach to sentencing with respect to count 11, making due allowance for the guilty plea, and any potential allowance for cooperation, is that the Court would first undertake an instinctive synthesis of all relevant factors, except for a plea of guilty and any cooperation; it would then consider what, if any, reduction should be given for the plea and any cooperation; and only then determine whether section 16AAC permits the imposition of a sentence which is less than the prescribed mandatory minimum sentence. Notwithstanding the appellant’s difficult childhood, which warranted the Court’s sympathy, the offending was serious and abhorrent and required the imposition of a sentence reflecting the need for general and specific deterrence. Held, per the Court: 1. In light of the judge’s significant reduction in accordance with the principle of totality, the ultimate sentence imposed was appropriate given the nature of the offending and the circumstances of the offender, and was within the range permissibly open to the judge. 2. In the separate and independent exercise of the Court's discretion, no different sentence should be imposed. 3. Permission to appeal granted. 4. Appeal dismissed. Crimes Act 1914 (Cth) s 16A(2)(g), s 16A(2)(h), s 16A(3), s 16AAA, s 16AAC, s 19B(1), s 20(1); Criminal Code Act 1995 (Cth), referred to. ABC v The King [2023] VSCA 280; Baxter (A Pseudonym) v The King [2024] SASCA 64; Brooks v The King [2025] SASCA 88; CDPP v Caldwell [2022] VCC 1258; Glasheen v R [2022] NSWCCA 191; Kentwell v The Queen (2014) 252 CLR 601; McGregor v R [2024] NSWCCA 200; Mill v The Queen (1988) 166 CLR 59; R v Delzotto [2022] NSWCCA 117; R v Edwards [2019] QCA 15; R v Kreutzer (2013) 118 SASR 211, applied. Hurt v The King (2024) 281 CLR 286; McGregor v The King [2024] NSWCCA 200; R v Taylor [2022] NSWCCA 256; Trinh v The King [2024] VSCA 61, discussed. -- 2 of 17 -- MIETTUNEN v THE KING [2026] SASCA 5 Court of Appeal – Criminal: S Doyle, David and Stanley JJA THE COURT: Introduction 1 This is an application for permission to appeal against a head sentence of five years and six months’ imprisonment with a non-parole period of two years and nine months imposed in respect of three offences contravening the Criminal Code Act 1995 (Cth) (the Code), being counts 10, 11 and 12. 2 As will be seen, though a number of errors were made, in the separate and independent exercise of the Court’s sentencing discretion, no lower sentence should be imposed. Offences for which the appellant was sentenced 3 The appellant, Mr Miettunen, pleaded guilty to one count of using a carriage service for child abuse material (count 10); one count of conduct for the purposes of electronic service used for child abuse material (count 11); and one count of possessing or controlling child abuse material obtained or accessed using a carriage service (count 12). Related maximum penalties 4 Count 10, using a carriage service for child abuse material, in contravention of s 474.22(1) of the Code, carries a maximum penalty of imprisonment of 15 years. 5 Count 11, conduct for the purposes of electronic service used for child abuse material, contrary to s 474.23A of the Code, carries a maximum penalty of imprisonment of 20 years and carries a mandatory minimum head sentence of imprisonment of five years,1 subject to certain exceptions. 6 Count 12, possessing or controlling child abuse material obtained or accessed using a carriage service, in contravention of s 474.22A(1) of the Code, carries a maximum penalty of imprisonment of 15 years. Sentence imposed 7 The notional sentences imposed, and their reductions, are set out in the following table: 1 Crimes Act 1914 (Cth) s 16AAA. -- 3 of 17 -- [2026] SASCA 5 The Court 2 Count Charge Notional sentence Reduction applied Sentence imposed after reduction 10 Using a carriage service for child abuse material Section 474.22(1) of the Criminal Code (Cth) (the Code) 18 months 15 per cent One year, three months, 10 days 11 Conduct for the purposes of electronic service used for child abuse material Section 474.23A of the Code Five years, six months 0 per cent Five years, six months 12 Possessing or controlling child abuse materials obtained or accessed using a carriage service Section 474.22A(1) of the Code 18 months 15 per cent One year, three months, 10 days 8 The judge ordered that nine months of count 12 be served concurrently with count 10. This resulted in a notional sentence for those counts of one year, nine months and 20 days’ imprisonment. 9 On count 11, the judge proceeded on the basis that a mandatory minimum sentence of five years’ imprisonment applied. 10 The judge decided, wrongly, that the sentence for counts 10 and 12 had to be cumulative on the sentence imposed for count 11. This resulted in a notional sentence of imprisonment of seven years, three months and 20 days. 11 The judge then considered the application of the principle of totality and reduced the head sentence to five years and six months. 12 The judge considered it appropriate to fix a non-parole period of 50 per cent of the head sentence, being two years and nine months. 13 Both the head sentence and the non-parole period commenced when sentence was pronounced on 19 November 2024. Personal circumstances of the appellant 14 The appellant was 24 years old at the time of sentence. 15 He has a lower than average cognitive capacity. With the benefit of additional academic assistance he was able to complete year 12 of high school. He was later diagnosed with dyscalculia, a neurological learning disorder specifically related to mathematics. He has low self-confidence. -- 4 of 17 -- [2026] SASCA 5 The Court 3 16 He was employed at a Subway restaurant until he resigned in August 2023 as he found the work too stressful and overwhelming. Prior to this offending, the appellant had never been to court or been charged with any criminal offending. 17 He was born and raised in Adelaide. He had a very traumatic early childhood where he was abused and repeatedly exposed to highly inappropriate sexualised behaviour. At the age of three he was taken into foster care. He had no contact with his biological parents after that. 18 During sentencing submissions a psychological assessment report prepared by Ms Susan Heinrich, dated 20 September 2024, was tendered. She observed that the appellant has lower than average cognitive capacity, which was likely caused by his mother’s drug and alcohol abuse while she was pregnant with him. 19 The appellant has an older brother who suffers from foetal alcohol spectrum disorder. The appellant’s brother told the appellant their parents would often have sex with each other and other partners in front of the appellant, and that his brother would take him into another room to protect him. 20 When the appellant entered foster care, his carer reported that he had cigarette burns on his skin. When he was three years old, he was fortunate to be placed in foster care with Edith who, from that age, afforded him a very good, stable childhood. He continued to live with Edith, until he was taken into custody, and she is supportive of him despite these charges. 21 When he was 13 or 14 years of age, the appellant began accessing pornography online and developed a pornography addiction. The appellant told Ms Heinrich he used it to regulate negative emotions such as sadness or stress. 22 The appellant later began accessing child exploitation material online somewhere between the age of 16 and 18 years. He reported using video chat and text-based chat websites, and through contact with the people he was interacting with, he was introduced to child exploitation material. Once he was introduced to this material he continued looking at it, as well as having inappropriate sexualised conversations, including about children, with other adults online. Ms Heinrich noted that experiences of childhood sexual abuse are consistently related to abnormal dysfunction in sexual behaviour, emerging in late childhood and adolescence then persisting into adulthood. Circumstances of the offending 23 The offending commenced in November 2023 and ceased on 7 February 2024 when members of the Joint Anti Child Exploitation Team attended the appellant’s home to execute a search warrant. The appellant cooperated in the execution of the warrant and made admissions in his interview with police. -- 5 of 17 -- [2026] SASCA 5 The Court 4 24 The evidence established, relative to count 10, that the appellant engaged in online chat conversations with seven other users on either Kik Messenger or Session applications, during which child abuse material was exchanged. 25 The appellant sent and received 19 images and exchanged written material on two occasions. Of the 19 images sent and received, three were of real children. 26 The appellant sent two of those images and received one image. The remaining 16 were animated images of which the appellant sent 15 and received one. The images included depictions of oral and anal penetrative sex between adult males and children, including a single animated image of an infant being anally raped. 27 In respect of count 11, the evidence established that on 3 February 2024 the appellant created, named, and controlled a public online group chat on Kik Messenger called “Shota For Now”. 28 Shota, or Shotacon, is a description of a type of Japanese animated child abuse material which involves the depiction of very young boys. As the creator of the group, the appellant was responsible for the user rules. One of the appellant’s rules required users not to share material of real child victims. 29 In the four days from 3 February 2024 until he was arrested, the appellant engaged in conversation with other members of the group and sent three images of animated child abuse material to members. 30 On 3 February 2024, during a separate chat conversation with Kik Messenger user “clawman man”, the appellant stated, “... I wanna start a group myself where people can talk about any fantasy or want in a sexual way”. 31 As to count 12, the evidence was that the appellant possessed 463 images and videos obtained or accessed using a carriage service. The images and videos depicting child abuse material were located on his mobile phone and on a cloud storage account linked to his email address. 32 There were 28 images on his mobile phone. The images were predominantly animated child abuse material. That material almost exclusively depicted prepubescent males, including infants. Classified according to the Australian Child Abuse Categorisation Scheme, there were nine Category 1 images and 19 Category 2 images. 33 On the cloud storage account linked to his email address, namely the “Mega Cloud Storage Account”, there were 435 items of child abuse material comprising 51 image files and 384 video files. Of the image files, 12 were Category 1 and 39 were Category 2. Of the video files, 223 were Category 1 and 161 were Category 2. -- 6 of 17 -- [2026] SASCA 5 The Court 5 34 The child abuse material was almost exclusively real prepubescent and pubescent male children with the majority being children approximately 10 years of age. The Mega Cloud Storage Account had been logged into on 10 separate occasions between 7 September and 18 October 2019. Significantly, the Mega Cloud Storage Account had not been accessed since 18 October 2019. 35 When he first began using child abuse material, the appellant was viewing images and videos of real children. Over time he came to realise that child abuse material was wrong, and he realised that children were being hurt. He transitioned to animated cartoon material. 36 The appellant told Ms Heinrich that at that time he held the belief that “…because he knew the material to be ‘fake’” and not depicting any real children, he justified his actions to himself as being less harmful as there was no clearly identifiable victim. Likewise, at that time he justified his engaging in sexually explicit discussions as not being harmful as “it was just a story … somewhat like an author who writes about murder … and nobody is hurt”. He told Ms Heinrich that on reflection, he knew “deep, deep down” his behaviour was wrong, but said he minimised the seriousness of his actions so he could continue engaging in the activity. The transition to animated material was reflected in the evidence constituting count 11 and count 12. 37 The appellant’s reason for transitioning to animated material showed an effort to analyse his disordered behaviour and to understand it. It demonstrated he was developing some insight into, and attempting to address, his issues. 38 Prior to his arrest he realised his offending was “a little bit” wrong but he did not realise it was so serious until he was arrested. Eleven days after he was arrested he sought out treatment from a psychologist, Mr Mauriello, and thereafter engaged in regular therapy on a fortnightly basis. 39 By undertaking psychological treatment he has come to realise his thinking about the material being fake and not depicting real children, and his thinking about the sexually explicit discussions not being harmful as they were just a story, were in fact harmful and was simply an effort to “give myself an excuse”. He now realises his thinking was harming himself and also causing harm to the people he was communicating with. 40 At the commencement of sentencing submissions, the appellant read out to the Court an apology for his actions and the choices he had made, and expressed his shame and remorse. 41 Ms Heinrich noted the appellant appeared to be engaged in substantial work with Mr Mauriello in relation to sexualised thoughts and sexual offending. It was reported that the appellant had a growing level of insight into his offending and sexualised thinking, and a strong motivation to change and never offend again. -- 7 of 17 -- [2026] SASCA 5 The Court 6 42 Ms Heinrich noted the treatment he was engaging in with Mr Mauriello was entirely appropriate and in line with the treatment he would receive at Owenia House. Ms Heinrich noted that if he were to continue to engage in therapy in the way he had been, his risk of re-offending would be considered low. She considered his high level of motivation to engage, and the reported strong level of rapport with Mr Mauriello, as positive indicators for successful rehabilitation. 43 Ms Heinrich noted that if the appellant was sentenced to immediate imprisonment it would be very unlikely that he would be provided with treatment while in custody. Ms Heinrich observed that while the appellant met the clinical criteria for a paedophilic disorder, he would be considered a non-exclusive paedophile, and that research demonstrates that non-exclusive paedophiles have better treatment outcomes and higher chances of rehabilitation than exclusive paedophiles. 44 As to his lower than average cognitive capacity, Ms Heinrich assessed that although it would not meet the criteria for a diagnosis of intellectual disability, his impaired cognitive function would make it more difficult for him to problem solve and think through the consequences of his actions. While this cognitive impairment would not give rise to a defence of mental incompetence or render him unfit to stand trial, she considered that from a clinical perspective, his cognitive impairment would have made it difficult for him to find ways to more appropriately manage his sexualised thoughts and unpleasant emotional states. Grounds of appeal 45 Ground 1 complains that the judge erred in not making any reduction on account of the appellant’s plea of guilty. This complaint, concerning the notional sentence imposed, only applies in respect of count 11. The judge reduced the notional sentence in respect of counts 10 and 12 by 15 per cent on account of the appellant’s guilty pleas. On the other hand, the judge did not allow any reduction for the appellant’s guilty plea in respect of count 11. There is no issue that this was a process error. 46 Ground 2 complains that the judge erred in not making any reduction on account of the appellant’s cooperation with law enforcement agencies. There is no issue that the judge did not allow any specific or separate reduction for cooperation with law enforcement agencies in respect of any of the three counts. It appears the judge considered he was precluded from allowing any reduction for cooperation in respect of count 11. Accordingly, to the extent that the judge considered he was precluded from doing so, it is accepted that this constitutes a process error. 47 Ground 3 complains that the sentence imposed was manifestly excessive. It is unnecessary for the Court to determine this ground as it may fix a different -- 8 of 17 -- [2026] SASCA 5 The Court 7 sentence in accordance with what it thinks ought to have been imposed even if the sentence imposed below was not, in itself, manifestly unreasonable.2 48 As we have said, it is common ground that the judge erred in considering that he was precluded from reducing the count 11 sentence for the pleas of guilty and/or cooperation, unless the precondition was established that the offending was within, or close to, the least worst possible case for an offence of this kind. Further, it is common ground that the judge erred in wrongly considering that if s 16AAC of the Crimes Act 1914 (Cth) (the Crimes Act) was not engaged, no reduction at all could be given on account of pleas of guilty and/or cooperation. Hurt v The King3 is authority for the proposition that it is a legitimate procedure for a court first to determine a notional sentence with the use of the prescribed minimum as a yardstick, prior to considering the reduction. 49 Given the existence of these process errors in the appellant’s sentencing, this Court’s power to intervene and resentence is enlivened, unless it is satisfied, in the separate and independent exercise of its discretion, that no different sentence should be passed.4 Consideration 50 The judge erred in considering he could only apply “deductions”5 for the appellant’s guilty plea and cooperation in respect of count 11 on the condition that he was first satisfied that the appellant’s offending fell within, or close to, the least worst possible case of that offence.6 The judge also erred in considering that reductions for guilty pleas and cooperation, for all counts, could only be applied if s 16AAC of the Crimes Act was engaged. 51 Section 16AAC of the Crimes Act allows for a reduction in the sentence below the statutory minimum if the criteria in the section are met, not a reduction in the statutory minimum itself. Subsections (2) and (3) empower a court to impose a sentence less than the mandatory minimum where it considers that adequate recognition cannot be given to an offender’s plea of guilty, or cooperation, without having to go below the mandatory minimum head sentence. 52 Section 16AAC(2) of the Crimes Act permits the Court to impose a sentence of less than the period specified in column 2 of the table in s 16AAA or s 16AAB(2), on the basis of an offender’s plea of guilty,7 or for cooperation with law enforcement agencies.8 Section 16AAC provides: Exclusions and reductions–minimum penalties 2 R v Kreutzer [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215. 3 [2024] HCA 8, (2024) 281 CLR 286. 4 Kentwell v The Queen [2014] HCA 37 at [35]; (2014) 252 CLR 601 at 615. 5 Or reductions or discounts. 6 Sentencing remarks DCCRM-24-030943, 20 November 2024. 7 Crimes Act 1914 (Cth) s 16A(2)(g). 8 Crimes Act 1914 (Cth) s16A(2)(h). -- 9 of 17 -- [2026] SASCA 5 The Court 8 … Reduction of minimum penalty (2) A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following: (a) the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty; (b) the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of: (i) in relation to any of items 1A to 1E of the table in section 16AAA--the offence or an offence against subsection 80.2H(1) or 80.2HA(1) or Part 5.3 or 5.5 of the Criminal Code; or (ii) in relation to any of items 1 to 15 of the table in section 16AAA or any of the items in the table in subsection 16AAB(2)--the offence or a Commonwealth child sex offence. (3) If a court may reduce a sentence, the court may reduce the sentence as follows: (a) if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty--by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table; (b) if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of: (i) in relation to any of items 1A to 1E of the table in section 16AAA--the offence or an offence against subsection 80.2H(1) or 80.2HA(1) or Part 5.3 or 5.5 of the Criminal Code; or (ii) in relation to any of items 1 to 15 of the table in section 16AAA or any of the items in the table in subsection 16AAB(2)--the offence or a Commonwealth child sex offence; by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table; (c) if the court is taking into account both of the matters in paragraphs (a) and (b)- -by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table. 53 This was explained in Trinh v The King9 by Taylor JA of the Victorian Court of Appeal, with whom Priest and Kaye JJA agreed, in the following terms:10 Nonetheless, in very limited circumstances, where an adult falls to be sentenced for an offence which attracts a minimum term, sub-section 16AAC(2) of the Crimes Act allows a 9 [2024] VSCA 61. 10 Trinh v The King [2024] VSCA 61 at [41]. -- 10 of 17 -- [2026] SASCA 5 The Court 9 court to impose a sentence of imprisonment of less than the prescribed minimum. Those circumstances arise “only if the court considers it appropriate” because that person has pleaded guilty or cooperated with law enforcement agencies or both. Sub-section 16AAC(3) then prescribes the manner in which any such reduction is to be made. [citations omitted]. 54 In Hurt v The King11 Edelman, Steward and Gleeson JJ explained the operation of s 16AAC(2) and (3), and in particular the cap on the reduction for a guilty plea, or cooperation, as follows:12 Section 16AAC(2) empowers a court to impose a sentence of imprisonment of “less than the [minimum] period specified” if the offender pleads guilty or co-operates with law enforcement agencies. Section 16AAC(3) places a cap on the extent of any reduction of sentence to ensure that the sentence does not fall 25% below the minimum period specified for each of an offender’s plea of guilty and co-operation … (or 50% below if both factors apply). 55 This was the approach adopted by the New South Wales Court of Criminal Appeal in McGregor v The King.13 56 There is no requirement for the application of s 16AAC of the Crimes Act that the offending fall within or close to the least worst possible case of the offence, just as there is no legislative prescription that the mandatory minimum penalty, and no greater sentence, can be imposed only where the offence in respect of which the sentence is to be passed is expressly characterised as within the least serious category of offending.14 In R v Taylor15 Simpson AJA, with whom Davies and Wilson JJ agreed, after observing that the prescription of a mandatory minimum term imports an additional constraint into the evaluation of proportionality, but does not eliminate proportionality,16 said:17 It may well be that, as a matter of judgment, it will be a rare case that a sentence at the level of the mandated minimum meets the requirements of sentencing unless the case is judged to be “within the least serious category of offending”. 57 However, this is neither a principle nor an additional constraint on the exercise of the sentencing discretion.18 The rarity might be descriptive but it is not prescriptive.19 58 Section 16A(2AAA) of the Crimes Act also requires the Court to consider the objective of rehabilitating the offender, including, in determining the length of any sentence or non-parole period, sufficient time for the person to undertake a 11 [2024] HCA 8, (2024) 281 CLR 286. 12 [2024] HCA 8 at [102], (2024) 281 CLR 286 at 324. 13 [2024] NSWCCA 200 at [23]-[35]. 14 R v Delzotto [2022] NSWCCA 117 at [8]. 15 [2022] NSWCCA 256. 16 R v Taylor [2022] NSWCCA 256 at [62]. 17 R v Taylor [2022] NSWCCA 256 at [69]. 18 R v Taylor [2022] NSWCCA 256 at [69]. 19 R v Taylor [2022] NSWCCA 256 at [70]. -- 11 of 17 -- [2026] SASCA 5 The Court 10 rehabilitation program. This requires the statutory minimum sentence be considered throughout the sentencing process, and not just as the final step in the process if the sentence to be imposed is imprisonment, ignoring the statutory minimum sentence to that point, and the length of that sentence of imprisonment happens to be less than the statutory minimum sentence. The same understanding applies to s 16A(3) of the Crimes Act, which requires the Court to have regard to the nature and severity of the conditions that may be imposed on an offender under a sentence or order when determining the application of, relevantly, s 19B(1) or s 20(1) of the Crimes Act.20 In Hurt v The King21 Gageler CJ and Jagot J said:22 These provisions undoubtedly make the application of the statutory minimum sentence more complex than the application of a statutory maximum sentence. Again, however, they do not mean that the statutory minimum sentence is incapable of acting as a meaningful yardstick representing the Commonwealth Parliament's view of the least worst possible case warranting imprisonment against which the case before the court at the time can be measured. They mean only that there are more steps involved. In summary, if a person was 18 years or more when the "current offence" was committed, is convicted of that offence, is to be subjected to a sentence of imprisonment, and is not to be subject to an order for release under and in accordance with s 20(1)(b), then the minimum sentence provision in s 16AAB(2) is engaged – the minimum sentence is the yardstick representing the Commonwealth Parliament's view of the least worst possible case warranting imprisonment against which the case before the court at the time can be measured. The sentence is to be determined recognising that yardstick as part of the synthesis of all other relevant factors. If the person has pleaded guilty or cooperated with law enforcement agencies, the court may reduce the sentence below the four year minimum (appropriate for the least worst possible case warranting imprisonment satisfying the qualifications described) in accordance with s 16AAC(3). Contrary again to the appellants' submissions, the reduction in s 16AAC(2) and (3) is available to all offenders who have pleaded guilty or who have cooperated with law enforcement agencies whether that reduction would decrease the sentence below the statutory minimum or not. [citation omitted]. 59 A sentence below the statutory minimum will be rare for offences other than those close to, or in the least worst possible category of case, because the starting point, before considering a reduction for pleas or cooperation, and thus also before considering s 16AAC, for any more serious offence will likely be higher than the mandatory minimum which is appropriate for the least worst possible case. However, this is a matter of description or observation, not prescription or principle. 60 In Hurt v The King23 the plurality of Edelman, Steward and Gleeson JJ said that the exceptional circumstances in which a discount can lead to a sentence of imprisonment below the minimum prescribed sentence do not detract from the role of the minimum sentence as a yardstick. Rather, the process contemplated by s 16AAC of the Crimes Act reinforces the role of the minimum sentence as a 20 Hurt v The King [2024] HCA 8 at [38], (2024) 281 CLR 286. 21 [2024] HCA 8, (2024) 281 CLR 286. 22 Hurt v The King [2024] HCA 8 at [39], (2024) 281 CLR 286 at 305. 23 [2024] HCA 8, (2024) 281 CLR 286. -- 12 of 17 -- [2026] SASCA 5 The Court 11 yardstick. The discretion in s 16AAC(2) applies, where it is appropriate, to reduce the sentence, implying that a legitimate procedure will involve determining a notional sentence with the use of the prescribed minimum sentence as a yardstick, prior to considering the reduction.24 61 The discretion to impose a sentence which is less than the prescribed minimum does not arise if the offender has neither pleaded guilty nor cooperated with law enforcement agencies as specified in s 16AAC(2) of the Crimes Act, or if the judge does not consider it appropriate to reduce the sentence for either of those factors. As explained in Trinh v The King:25 In other words, an offender who has neither pleaded guilty nor cooperated in the relevant sense cannot receive a sentence that is less than the statutory minimum. Because of the practical benefits to the legal system of an offender pleading guilty and/or assisting authorities in the investigation of their own offending or child sexual offending generally, an offender who has done one or both of those things may, but not must, receive a sentence less than the statutory minimum. The sentencing process requires the judge to determine a prima facie sentence – which involves (but is not limited to) consideration of the offending measured against the yardstick minimum term which is for the ‘least worst possible case’ deserving of imprisonment – and then to overtly consider whether the fact and quality of either the plea or cooperation or both renders it ‘appropriate’ in all the circumstances to impose a sentence less than the prescribed minimum. This does not involve ‘double counting’ of a guilty plea and/or cooperation. Rather, it requires a sentencing judge to separately and expressly consider whether the instinctive synthesis of all relevant sentencing considerations has given adequate expression to those matters if the sentence remains at or above the statutory minimum. In all cases an offender who has pleaded guilty and/or cooperated with law enforcement agencies will receive a benefit for the plea and cooperation. In only some cases will that benefit extend to a sentence of imprisonment of less than the minimum term. Exercise of sentencing discretion in the statutory context in this case 62 The correct approach to sentencing with respect to count 11, making due allowance for the guilty plea, and any potential allowance for cooperation, is as follows: (i) For the purposes of instinctive synthesis the sentencing judge should identify the statutory maximum penalty for the sentencing offence. This fixes the highest end of the sentencing range; (ii) Where a statute imposes a mandatory minimum head sentence, subject to limited exceptions as is the case here, that fixes the lowest end of the sentencing range and is the starting point for an offence in the least worst possible category of case; (iii) After synthesizing all the subjective and objective factors, except for any guilty plea and cooperation, the Court should determine a sentence 24 Hurt v The King [2024] HCA 8 at [104], (2024) 281 CLR 286 at 324. 25 [2024] VSCA 61 at [44]. -- 13 of 17 -- [2026] SASCA 5 The Court 12 starting point, using the maximum and minimum penalties as yard sticks; (iv) The Court should then consider what, if any, reduction should be given for the offender’s guilty plea and, separately, for cooperation; (v) Depending on the starting point, and any reduction for a guilty plea and/or cooperation, this may, or may not result in the sentence being less than the prescribed minimum head sentence; (vi) Section 16AAC(2) of the Crimes Act permits the imposition of a sentence less than the prescribed minimum, where it is necessary to give effect to the reductions made for a guilty plea and/or cooperation; (vii) However, it must not result in a head sentence which is more than 25 per cent less than the prescribed minimum sentence (where it is appropriate to make a reduction for either a guilty plea or cooperation), or more than 50 per cent less than the prescribed minimum sentence (where it is appropriate to make a reduction for both). 63 In summary, the appropriate process is that the Court would first undertake an instinctive synthesis of all relevant factors, except for a plea of guilty and any cooperation; it would then consider what, if any, reduction should be given for the plea and any cooperation; and only then determine whether section 16AAC permits the imposition of a sentence which is less than the prescribed mandatory minimum sentence. The mandatory minimum 64 We accept the respondent’s submission that the count 11 offending did not fall within the least serious category of case for that type of offending. A range of factors support a rejection of the appellant’s submission to the contrary. 65 First, the appellant created and controlled the Kik Messenger group. Further, he not only created the group, he set rules for it and assigned and removed administrator status to and from other users. 66 Second, the appellant transmitted material to the group, which while also being the subject of a separate offence, colours the nature and circumstances of the offending the subject of count 11. 67 Third, while the child abuse material did not depict real children, that does not make the offending substantially less serious. This was Category 1 and Category 2 material.26 It lacked the notorious feature of being committed with real children, at least directly, but as has been observed, such offending is not to be treated as substantially distinguishable from other categories. It is simply different 26 Classified according to the Australian Child Abuse Categorisation Scheme. -- 14 of 17 -- [2026] SASCA 5 The Court 13 from them, just as they are different from one another.27 This offending can lead those who use it to gratify their own deviant tendencies and to escalate to more serious offending directly against children. 68 Fourth, the explicit purpose of the group was the sharing of animated child abuse material between members. This is more serious offending than where an offender commits the offence without intending to share any child abuse material. The very purpose of the offending in this case was the sharing of animated child abuse material. 69 Fifth, the offending ceased only because the appellant was arrested. Accordingly, he is not entitled to any leniency on the basis that the appellant ceased his offending of his own volition. 70 All things considered, a starting point higher than the mandatory minimum was appropriate. That said, as described above, there were also some features of the appellant’s offending and personal circumstances which limited the seriousness of the offending including the limited traffic on the platform, the use of animated images, the appellant’s difficult background and favourable personal circumstances. Resentencing 71 For the purposes of resentencing, for count 11, after synthesizing all of the subjective and objective factors, other than the exceptions in s 16A(2)(g) for a plea of guilty and s 16A(2)(h) for cooperation with law enforcement agencies, we would start with a sentence of six years’ imprisonment. 72 We accept the respondent’s submission that a moderate reduction on account of the appellant’s guilty plea to the count 11 offending is justified. While the plea was entered at committal, it was the case that it was entered in the face of a strong prosecution case. That necessarily calls into doubt the extent to which the guilty plea can be considered to have been motivated by a willingness to facilitate the administration of justice. Nonetheless, it is appropriate that any sentence properly reflects the utilitarian goal of encouraging pleas of guilty.28 We would allow a reduction of 20 per cent for the plea of guilty. 73 We accept the appellant’s conduct in making admissions in a record of interview with police and providing a passkey is a proper basis to establish cooperation of the kind contemplated by s 16A(2)(h) of the Crimes Act, enlivening a discretion in the Court to impose a separate reduction for that cooperation.29 27 R v Edwards [2019] QCA 15 at [76]. 28 Hurt v The King [2024] HCA 8 at [104]–[105], (2024) 281 CLR 286 at 324-325. 29 Hurt v The King [2024] HCA 8 at [104]–[105], (2024) 281 CLR 286 at 324-325; CDPP v Caldwell [2022] VCC 1258; McGregor v R [2024] NSWCCA 200; ABC v The King [2023] VSCA 280 and Glasheen v R [2022] NSWCCA 191. -- 15 of 17 -- [2026] SASCA 5 The Court 14 74 We also accept the respondent’s submission that similar considerations to the fact of the guilty pleas apply when deciding whether, and to what extent, there is a basis to mitigate the sentence for cooperation with law enforcement agencies. That does not preclude the Court from mitigating the sentence that would otherwise have been imposed, but it does limit the extent of the leniency the sentencing Court can accord to the appellant. While the tragic circumstances of the appellant’s early life invites the Court’s sympathy, this is nonetheless serious and abhorrent offending which must be deterred. 75 In any event, this is not a case where the appellant is entitled to any leniency because the victims of his offending have been spared the ordeal of giving evidence. 76 In all the circumstances, we would allow a reduction of an additional five per cent for cooperation with law enforcement agencies, giving an overall reduction of 25 per cent from the starting point. 77 That would result in a notional sentence for count 11 of four years and six months. 78 For the purposes of resentencing for counts 10 and 12, after synthesizing all of the subjective and objective factors, other than the exceptions in s 16A(2)(g) and s 16A(2)(h), in respect of each count we would start with sentences of 18 months’ imprisonment. We would allow a reduction of 20 per cent for each of the pleas of guilty. We would also allow a reduction of an additional five per cent each for cooperation with law enforcement agencies. 79 That would result in a notional sentence for those counts of one year, one month and 15 days each. 80 The judge erred in thinking that a consequence of the Parliament fixing a mandatory minimum sentence is that any other sentence must be cumulative on that sentence. Section 19(5) of the Crimes Act creates a presumption in favour of accumulation of sentences for Commonwealth child sex offences. However, s 19(6) provides that s 19(5) does not apply if the Court is satisfied that sentencing in a different manner would still result in sentences that are of a severity appropriate in all the circumstances. We accept the respondent’s submission that a degree of partial concurrency might be appropriate and that to structure the sentence in such a way can still result in a sentence of a severity appropriate in all the circumstances. 81 We would make six months of the term of imprisonment on count 10 cumulative with the term of imprisonment for count 11, and six months of the term of imprisonment for count 12 cumulative with the term of imprisonment on count 11. 82 This results in a heads sentence of five years and six months. -- 16 of 17 -- [2026] SASCA 5 The Court 15 83 We would fix a non-parole period of 50 per cent of the head sentence being two years and nine months, having regard to the appellant’s desire to undergo rehabilitation programs unavailable to him in prison. We would backdate the sentence of imprisonment to 19 November 2024 when the appellant was taken into custody. 84 The judge significantly reduced the notional sentence on account of the principle of totality. The judge utilised the principle to impose and then reduce the notional sentence rather than using concurrency or reducing individual sentences as a means of ensuring proportionality in the head sentence imposed in relation to multiple offences. In our view, there is no scope in this case to apply the principle of totality. The usual purpose served by a reduction in sentence for the purpose of totality has, in this case, been served by making the sentences partially concurrent.30 85 While this Court’s power to intervene and resentence is enlivened given the existence of process errors, we are not satisfied, in the separate and independent exercise of our discretion, that a lower sentence should be passed.31 In the circumstances, we do not consider that a proper basis has been established for the Court’s intervention in relation to the sentence that was imposed of five years and six months’ imprisonment with a low non-parole period of 50 per cent of the head sentence, namely, two years and nine months’ imprisonment. This will have the outcome that the appellant will be eligible for parole by 20 August 2027. 86 The sentence must reflect the need for general and specific deterrence. We are satisfied that no different sentence than the one imposed should be passed in accordance with the principle in Kentwell.32 In light of the judge’s significant reduction in accordance with the principle of totality, the ultimate sentence imposed was appropriate given the nature of the offending and the circumstances of the offender. That results in the imposition of a sentence that is within the range permissibly open to the judge for the overall offending. Conclusion 87 We would grant permission to appeal but dismiss the appeal. 30 Baxter (A Pseudonym) v The King [2024] SASCA 64 at [55], citing Mill v The Queen (1988) 166 CLR 59. 31 Kentwell v The Queen [2014] HCA 37 at [43], (2014) 252 CLR 601 at 618-619; Brooks v The King [2025] SASCA 88 at [10]. 32 Kentwell v The Queen [2014] HCA 37 at [43], (2014) 252 CLR 601 at 618-619. -- 17 of 17 --