THE KING v JORDAN LEE HALLIWELL [2026] SASCA 33

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE PRESS) DCCRM- 24-004768 Applicant: THE KING Counsel: MR M HINTON KC WITH MS L HURLEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: JORDAN LEE HALLIWELL Counsel: MR A RICE - Solicitor: NICK THOMSON LEGAL Hearing Date/s: 10/02/2026 File No/s: SCCRM-25-023028 A 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. R v HALLIWELL [2026] SASCA 33 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby) 2 April 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - POWER TO BRING APPEAL CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE Application by the Director of Public Prosecutions for permission to appeal against sentence. The respondent pleaded guilty to one count of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). On 1 February 2023, the applicant engaged in penile/vaginal sexual intercourse with the victim. At the time of offending, the victim was 15 years and 11 months old. The respondent was 18 years and six months old. The respondent was sentenced to a period of imprisonment of one year and two months, with a non-parole period of seven months. The sentencing judge was satisfied that good reason existed to suspend the sentence upon the respondent entering into a bond to be of good behaviour. The following issues were raised on appeal: • whether the judge erred in suspending the sentence upon satisfaction that there was ‘good reason’ to suspend in circumstances where his discretion to suspend was only enlivened if he was satisfied that the offending occurred in ‘prescribed circumstances’; and • if the judge did so err, whether the offending occurred in ‘prescribed circumstances’. -- 1 of 26 -- Held, refusing permission to appeal: (per Livesey P) 1. Where a defendant demonstrates ‘prescribed circumstances’ under s 96(10) of the Sentencing Act 2017 (SA) it will be open to consider suspending a sentence of imprisonment for a ‘serious sexual offence’. That requires that the sentencing court consider the full range of sentencing considerations when determining whether there is ‘good reason’ to suspend under s 96(1) of the Sentencing Act. 2. In circumstances where the Director’s suggested error of construction under ss 96(1) and 96(10) of the Sentencing Act was not the subject of considered submissions before the sentencing judge, this is not an appropriate case in which to grant permission to appeal. 3. This Court cannot determine whether a sentence is appropriate, let alone so inadequate that intervention on a prosecution appeal is warranted, without having regard to all of the relevant circumstances, which necessarily include those relating to the victims of criminal offending. 4. It is neither necessary nor appropriate for this Court to revise the long-standing approach taken to when it is appropriate to grant permission to the prosecution to appeal against sentence under ss 150 and 157 of the Criminal Procedure Act 1921 (SA). (per S Doyle JA) 1. A contextual consideration of s 96(10)(b) of the Sentencing Act reveals that the words ‘appropriate that the sentence be suspended’ means it is appropriate that suspension be available as a sentencing option under s 96(1). (per Bleby JA, S Doyle JA agreeing) 1. In circumstances where the respondent was sentenced as an adult for a serious sexual offence, the Court must assess the question of whether it is ‘appropriate that the sentence be suspended’, as framed in s 96(10)(b) of the Sentencing Act, by reference to the circumstances of the offending. That is a gateway task, rather than a determinative inquiry. 2. If the Court reaches a positive conclusion of appropriateness by reference to the circumstances of the offending, it can then go on to consider, pursuant to s 96(1) of the Sentencing Act, whether good reason exists to suspend the sentence. On that inquiry, factors external to ‘the circumstances of the offending’ might further recommend, or speak against, the existence of ‘good reason’. 3. The public interest in intervening on sentence, which must be weighed against double jeopardy considerations and the concomitant principle of restraint, necessarily incorporates contemporary understandings of the effects of the offending on victims. 4. The hardship of exposing the respondent to the double jeopardy associated with him being resentenced strongly outweighs the public interest in the Court intervening. Criminal Law Consolidation Act 1935 (SA) s 49(3), 49(4), 49(5a); Criminal Procedure Act 1921 (SA) ss 150, 157; Sentencing Act 2017 (SA) ss 11(1), 13–16, 71(6), 96(1), 96(3), 96(9), 96(10), referred to. R v McIntyre (2020) 138 SASR 17; R v Allpass (1993) 72 A Crim R 561, applied. Cappo v The King [2025] SASCA 55, discussed. Barbaro v The Queen (2014) 253 CLR 58; Brooker v The King [2024] SASCA 135; CMB v Attorney-General (NSW) (2015) 256 CLR 346; Cumberland v The Queen (2020) 94 ALJR 656; Elias v The Queen (2013) 248 CLR 483; Everett v The Queen (1994) 181 CLR 295; Glade v The Queen [2020] SASCFC 83; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; Griffıths v The Queen (1977) 137 CLR 293; Hackett v The Queen [2021] SASCA 32; House v The King (1936) 55 CLR 499; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Markarian v The Queen (2005) 228 CLR 357; Millwood v The King [2024] SASCA 84; Munda v Western Australia (2013) 249 CLR 600; R v Ametovic [2024] SASCA 153; R v Beaumont (2023) 312 A Crim R 356; R v Berry [2024] -- 2 of 26 -- SASCA 116; R v Butler (2022) 303 A Crim R 296; R v Dyett [2023] SASCA 41; R v Harris (2023) 144 SASR 246; R v Henderson (2023) 142 SASR 507; R v King [2009] NSWCCA 117; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Payne (2004) 89 SASR 49; R v Pham (2015) 256 CLR 550; R v Williams (1990) 53 SASR 253; R v Yaroslavceff [2022] SASCA 123; R v Singh [2024] SASCA 81, considered. -- 3 of 26 -- -- 4 of 26 -- R v HALLIWELL [2026] SASCA 33 Court of Appeal – Criminal: Livesey P, S Doyle and Bleby JJA LIVESEY P: Introduction 1 There are two questions of principle raised by this prosecution appeal. The first concerns the proper construction of the provisions in s 96 of the Sentencing Act 2017 (SA), which both permit and constrain the exercise of the discretion to suspend a sentence of imprisonment for ‘serious sexual offences’ in ‘prescribed circumstances’. Associated with this question of construction is whether it is necessary to revisit what was said by this Court about the operation of these provisions in Cappo v The King.1 2 The second question of principle is whether the traditional statement of principles concerning when it is appropriate to grant the prosecution permission to appeal against sentence requires that ‘the calculus … be recalibrated’ because of contemporary recognition of the need for any sentence to vindicate the interests of the victims of criminal offending. The disposition of the application for permission 3 The answer to the first question of principle is that, whilst it is appropriate to clarify what was said by this Court in Cappo v The King,2 the approach taken by the prosecution to these provisions on this appeal should be rejected. The exercise of discretion under s 96(1) of the Sentencing Act in a case such as this should be approached in the following way: 1. It must first be determined whether the offending comprises a ‘serious sexual offence’ within s 96(9) of the Sentencing Act. 2. If the offending comprises a ‘serious sexual offence’, it is then necessary to consider whether the offending occurred in ‘prescribed circumstances’ as defined under s 96(10). That turns on whether the three pre-conditions in ss 96(10)(a), (b) and (c) have been established, where the ‘circumstances of the offending’ limb under s 96(10)(b) must be addressed in the manner explained in Cappo v The King.3 If those pre-conditions are determined favourably to the defendant, it is open to the sentencing court to consider suspending the sentence. 3. Finally, it is then necessary to determine whether, in the exercise of its sentencing discretion, the sentencing court ‘thinks that good reason exists’ for suspending the sentence under s 96(1) of the Sentencing Act. That 1 Cappo v The King [2025] SASCA 55, delivered a few days after the sentencing remarks in this case. 2 Cappo v The King [2025] SASCA 55, [74] (Livesey P, S Doyle and David JJA). 3 Cappo v The King [2025] SASCA 55, [73] (Livesey P, S Doyle and David JJA). -- 5 of 26 -- [2026] SASCA 33 Livesey P 2 requires that the court consider the full range of sentencing considerations which would usually be considered when determining whether to suspend a sentence of imprisonment,4 together with any other aspects of s 96 that may be relevant. 4 The answer to the second question of principle is that, unless and until the High Court determines otherwise, it is neither necessary nor appropriate for this Court to alter the long-standing approach taken to when it is appropriate to grant permission to the prosecution to appeal against sentence under ss 150 and 157 of the Criminal Procedure Act 1921 (SA). 5 Having regard to the circumstances of this case, particularly the way in which the matter was argued before the sentencing judge, this is not an appropriate case in which to grant the prosecution permission to appeal. The first question of principle 6 The Director of Public Prosecutions (SA) (the Director) argued that it was necessary for this Court to reconsider ‘the second issue’, as it was described, in Cappo v The King. 5 7 In particular, it was suggested that when determining whether the circumstances of the offending rendered it appropriate to suspend a sentence of imprisonment or make a home detention order, the sentencing court does not undertake that exercise by ‘having regard to the full range of sentencing considerations’. The Director argued that this approach paid insufficient attention to the text of the relevant provisions of the Sentencing Act and, particularly, the terms of s 96(10)(b) which address the second of the three pre-conditions in the definition of ‘prescribed circumstances’, being that ‘the circumstances of the offending, including the victim’s age and the age difference between the defendant and the victim’ must be ‘such that it is appropriate that the sentence be suspended’. Importantly, the Director argued that this provision was, effectively, ‘self-contained’. That is to say, whether the discretion to suspend may be exercised must be addressed by reference only to whether the defendant had made out ‘prescribed circumstances’ and whether it was ‘appropriate’ to suspend having regard to the matters specified in s 96(10)(b) of the Sentencing Act. 8 It is first helpful to consider what was in issue before the Court in Cappo v The King. In that case, the parties were in dispute about whether, and to what extent, the defendant’s motive and mental health or emotional maturity could be regarded as coming within ‘the circumstances of the offending’ limb of s 96(10)(b). The appellant argued that these matters had been disregarded by the sentencing judge. By contrast, the respondent argued that it was necessary to consider only ‘those matters which look towards more of the objective [than] the 4 Discussed in Cappo v The King [2025] SASCA 55, [74] (Livesey P, S Doyle and David JJA). 5 Cappo v The King [2025] SASCA 55, [74] (Livesey P, S Doyle and David JJA). I gratefully refer to the reasons of Bleby JA, which helpfully set out the relevant facts and the provisions of the Sentencing Act, as well as the passages in Cappo v The King to which reference will be made. -- 6 of 26 -- [2026] SASCA 33 Livesey P 3 subjective’ and the appellant’s ‘developmental situation’ went ‘beyond that line’.6 In Cappo v The King, this Court rejected the respondent’s approach to ‘prescribed circumstances’ and took what might be thought a broad view of ‘the circumstances of the offending’. 9 The Director does not now take issue with the broad view taken of ‘the circumstances of the offending’ when considering whether or not ‘prescribed circumstances’ have been established. The parties to this appeal accepted that the determination of ‘the circumstances of the offending’ limb of ‘prescribed circumstances’ was accurately addressed in the following passage from Cappo v The King:7 As to the first issue, under ss 71(6) and 96(10), the focus of any inquiry as to the circumstances of the offending must be on the victim’s age and the age difference between the defendant and the victim. However, the words used in ss 71(6) and 96(10) do not limit a consideration of the circumstances of the offending to those matters. Moreover, any such assessment may (and often will) be informed by other subjective matters which cannot be neatly extricated from the objective features of the offending. These may include matters such as a defendant’s motive for the offending, his or her ability to appreciate the gravity of the offending in the context of a defendant’s mental health or emotional maturity, the relationship between the defendant and the victim including any personal history between the parties, and other factors personal to a defendant which may inform the circumstances of the offending. These matters are but examples and there are no hard and fast rules as to the metes and bounds of what subjective factors may inform the circumstances of the offending. 10 Rather, the argument in this Court concerned the ‘second issue’ addressed in the following passage:8 As to the second issue, a sentencing judge when determining whether the circumstances of the offending are such that it appropriate to suspend the sentence or make a home detention order is required to undertake that exercise by having regard to the full range of sentencing considerations. That is so because of the individualised nature of the sentencing exercise. For example, one can imagine a situation where two defendants commit sexual offences in very similar circumstances (having regard to their age and the difference in age between each defendant and victim) but having regard to their respective personal circumstances, including matters such as the antecedents of each defendant and differing prospects of rehabilitation, a suspended sentence or home detention order may be appropriate for one defendant and not the other defendant. In addition, sentencing objectives such as principles of general and personal deterrence, the paramountcy to be provided the safety of the protection of the community, and indeed condign punishment, may weigh more heavily when sentencing one defendant when compared with another. It follows that a sentencing judge is required to have regard to the complete range of sentencing considerations when considering whether the circumstances of the offending make it appropriate to suspend a sentence or make a home detention order. 6 Transcript, Cappo v The King (Court of Appeal, SCCRM-24-031830, Livesey P, S Doyle and David JJA, 8 November 2024) 20.2-20.14. 7 Cappo v The King [2025] SASCA 55, [73] (Livesey P, S Doyle and David JJA). 8 Cappo v The King [2025] SASCA 55, [74] (Livesey P, S Doyle and David JJA). -- 7 of 26 -- [2026] SASCA 33 Livesey P 4 11 Whilst the Director took issue with this second passage, he did so on the basis that the statutory test was one of ‘appropriateness’ under s 96(10) and not ‘good reason’ to suspend under s 96(1) of the Sentencing Act.9 12 In my view, that submission tended to expose the disputed point of principle. Even if one were now to review the approach taken in Cappo v The King concerning the content of ‘prescribed circumstances’ under the ‘second issue’, it is not correct to conclude that the exercise of the discretion to suspend no longer takes account of ‘the full range of sentencing considerations’. 13 Whilst it is appropriate to refine what was said in Cappo v The King about the ‘second issue’, the Director’s submission about the operation of s 96(10) should be rejected. 14 The source of the sentencing court’s power to suspend remains s 96(1) of the Sentencing Act. The exercise of the discretion to suspend a sentence of imprisonment is not determined only by having regard to whether the defendant has established ‘prescribed circumstances’ as defined under s 96(10). Even if those circumstances are made out, the sentencing court must still determine whether there is ‘good reason’ to suspend and that will, as it always has, require that consideration be given to the full range of sentencing considerations. 15 The introduction of ‘prescribed circumstances’ as a potential fetter on the exercise of the discretion to suspend does not demonstrate that the legislature intended that the grant of the discretionary power to suspend under s 96(1) should be obviated by s 96(10) in the manner suggested by the Director. Apart from any other consideration, one element of the definition of ‘prescribed circumstances’ in s 96(10)(b) would be an odd place in which to locate a stand-alone source of power. 16 In my view, the exercise of discretion must be addressed in a case such as the present in the way outlined at the outset of these reasons. Those three stages better reflect the overall scheme and structure of these provisions. The second stage turns on whether, at the time of the offending: (a) the defendant was 20 years or younger; (b) it is appropriate to suspend having regard to the circumstances of the offending, including the age of the victim and the respective ages of the defendant and the victim; and (c) whether the defendant was not in a position of authority with regard to the victim. The ‘circumstances of the offending’ are to be read broadly, in the manner explained in Cappo v The King. And, at the final stage, overlooked on the Director’s argument, the sentencing judge must determine whether there is ‘good reason’ to suspend. 17 Having clarified the approach to ‘prescribed circumstances’ and the exercise of discretion under s 96(1) of the Sentencing Act, it is necessary to determine whether permission to appeal should, in the circumstances of this case, be granted. 9 Transcript, 7.8-7.13. -- 8 of 26 -- [2026] SASCA 33 Livesey P 5 18 A close consideration of the transcript of the hearings before the sentencing judge in this case reveals that what was argued by the Director before this Court was not argued before the sentencing judge. The parties did not address in any detail whether the offending occurred in ‘prescribed circumstances’. For example, the defendant argued that this was a proper case for suspension by relying upon the following passage in R v Harris:10 In many cases of unlawful sexual intercourse the ordinary penalty will involve both a conviction and a sentence of imprisonment.11 However, as it is common ground that the offending in this case occurred in “prescribed circumstances”, it was open to suspend any sentence of imprisonment or order that it be served on home detention.12 These provisions of the Sentencing Act supplement the exceptions recognised by the CLCA where the offender and the complainant are close in age.13 Where prescribed circumstances are established, it will often be appropriate to consider those sentencing options. The course which is taken must nonetheless depend on the facts and circumstances of the case before the sentencing court. These sentencing options may be rendered inappropriate, especially if the case requires that the sentencing court give emphasis to sentencing considerations such as community safety, general and personal deterrence, and punishment. 19 In response, the prosecutor argued before the sentencing judge that there were a number of circumstances which demonstrated that only an immediate custodial sentence would adequately reflect the defendant’s offending and, in consequence, ‘the discretion for suspension is not enlivened’.14 20 The limited references made in the sentencing remarks to the ‘circumstances of the offending’ when determining whether or not suspension was ‘appropriate’ must be understood having regard to what was put into issue before the sentencing judge.15 The sentencing remarks closely followed the arguments that were put during the sentencing hearing. In circumstances where what was primarily in issue before the sentencing judge concerned the exercise of the discretion to suspend, rather than the existence or otherwise of prescribed circumstances, it is not at all surprising that the remarks of the sentencing judge touched only lightly on ‘prescribed circumstances’ and concentrated on whether the court could be satisfied that ‘good reason’ existed to suspend. 21 What has been raised by the Director is, effectively, a new point raised for the first time on this appeal. It is not appropriate, if not unfair, to test the remarks 10 R v Harris (2023) 144 SASR 246, [6]-[7] (Livesey P, Lovell and Bleby JJA). See AB 113. 11 R v Williams (1990) 53 SASR 253, 254; Glade v The Queen [2020] SASCFC 83; R v Butler (2022) 303 A Crim R 296; R v Dyett [2023] SASCA 41. 12 Sentencing Act, ss 71(6) and 96(10). That is, the defendant was at the time of the offending 20 years or less; the circumstances of the offending, including the victim’s age and age difference between the defendant and the victim was such that it is appropriate for the sentence to be suspended; and the defendant was not in a position of authority in relation to the victim at the time of the offending. 13 See s 49(4) and s 49(5a) of the CLCA, addressed in more detail below. 14 Transcript, R v Halliwell (District Court, DCCRM-24-004768, Judge Press, 28 February 2025) 16.4. See AB 127. 15 Sentencing remarks, AB 148. -- 9 of 26 -- [2026] SASCA 33 Livesey P 6 of the sentencing judge by reference to an argument that was not put to him. That this point represents a marked shift in the approach taken before the sentencing judge is an important factor weighing against the grant of permission to appeal.16 22 In circumstances where the suggested error of construction in the statutory power concerning the exercise of sentencing discretion was not the subject of considered submissions before the sentencing judge, this is not an appropriate case in which to grant the Director permission to appeal. Otherwise, it is far from clear or obvious that the circumstances of the offending rendered it inappropriate to consider suspension in this case. The second question of principle 23 The Director referred to the following recent summary of the principles relating to prosecution appeals in R v Harris:17 This Court has recently had occasion to consider a number of prosecution appeals. There is no issue about the applicable principles. The restraint exercised in connection with whether to grant permission to the prosecution to appeal sentence under ss 150 and 157 of the Criminal Procedure Act 1921 (SA) reflects the long-standing concern that a defendant ought not be unduly exposed to a form of double jeopardy. Whether to grant permission engages questions of high public policy which operate as a “stringent barrier” to the grant of permission to appeal.18 Whilst an appeal court cannot intervene merely because it would have exercised the sentencing discretion differently, and it is necessary to identify material error in the exercise of the sentencing discretion, mere error does not justify appellate intervention on a prosecution appeal.19 The grant of permission to the prosecution to appeal sentence is reserved for those cases where it is necessary for this Court to intervene and determine a matter of principle, to establish or maintain adequate sentencing standards or to correct idiosyncratic views expressed by individual sentencing judges.20 Moreover, it may be appropriate to grant permission where the sentence is so manifestly inadequate that it amounts to an error of principle, as well as where the sentence is so low and disproportionate to the seriousness of the offending that it may undermine public confidence in the administration of justice.21 The requirement that permission to appeal sentence will only be granted to the prosecution in “rare and exceptional” cases reinforces the public policy features which must be observed by the appeal court, as well as the exceptional nature of the course the appeal court is being invited to take. This requires an analysis which is both qualitative and 16 R v Beaumont (2023) 312 A Crim R 356, [69] (Livesey P, Lovell and Bleby JJA). 17 R v Harris (2023) 144 SASR 246, [46]-[51] (Livesey P, Lovell and Bleby JJA). 18 R v Henderson (2023) 142 SASR 507, [34] (Livesey P and David JA). 19 Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [8]-[21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, [1]-[2] (French CJ, Crennan and Kiefel JJ); CMB v Attorney-General (NSW) (2015) 256 CLR 346, [54]-[56] (Kiefel, Bell and Keane JJ); Cumberland v The Queen (2020) 94 ALJR 656, [4]-[6], [33] (Bell, Gageler and Nettle JJ). 20 R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ); R v Payne (2004) 89 SASR 49, [86] (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ); Munda v Western Australia (2013) 249 CLR 600, [87] (Bell J). 21 Everett v The Queen (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ); Griffıths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ); R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ). -- 10 of 26 -- [2026] SASCA 33 Livesey P 7 comparative.22 It is necessary for the prosecution to demonstrate that considerations relating to double jeopardy are outweighed by the need for this Court’s principled intervention. Moreover, it is of the first importance to recognise and respect the breadth of the sentencing discretion reposed in sentencing courts. Acknowledging that questions of degree are involved in determining whether a sentence is so inadequate that intervention is warranted on a prosecution appeal, sentences are reviewed against the requirement that sentencing judges will be afforded as much flexibility in sentencing as is consistent with the common law and statutory regime that applies.23 Prosecution appeals cannot be allowed to unduly circumscribe the exercise of the broad sentencing discretion reposed in sentencing judges,24 especially as sentencing entails individualised justice.25 24 After referring to this passage, the Director submitted that this statement ‘cleaves to sentencing principles largely in the late 1980s and mid-1990s’.26 It was submitted that these principles should not be ‘jettisoned but the calculus has to be recalibrated’. Reference was made to ‘the importance of sentencing and the sentence to the vindication of the victim’. It was then submitted that:27 … The public conscience is not narrowly focused on what the defendant gets, but expands to consider the consequences for the victim of a sentence that does not restore integrity, and the consequences for the community of a sentence that does not achieve the purposes of sentencing. … 25 The Director’s submissions invited this Court to hold that the long-standing approach to determining whether to grant permission to the prosecution to appeal should be revised. How that should be done was not articulated. That invitation should be rejected for two reasons. The first is that the relevant principles do not ‘cleave’ to authorities of thirty or forty years ago, addressing considerations which have been overtaken by a contemporary understanding of the interests of the victims of crime. The role of double jeopardy considerations, whether there is a need for this Court’s principled intervention in a particular case, and the need to recognise the breadth of the sentencing discretion reposed in sentencing judges remain as vital and as important as ever they were. 26 The continuing importance of these considerations is reflected in the authorities on which this Court has, in recent years, relied which include recent decisions of the High Court. The relevant principles are in no way ‘stuck’ in the 1980s and mid-1990s. Whether in connection with the exercise of the discretion to grant permission to appeal, or in connection with the exercise of the residual 22 R v Yaroslavceff [2022] SASCA 123; R v Henderson (2023) 142 SASR 507, [34] (Livesey P and David JA). 23 R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ). 24 R v Osenkowski (1982) 30 SASR 212, 212 (King CJ). 25 Hackett v The Queen [2021] SASCA 32, [8] (Kelly P, Lovell and Livesey JJA); Elias v The Queen (2013) 248 CLR 483; Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ); House v The King (1936) 55 CLR 499; Barbaro v The Queen (2014) 253 CLR 58, [61] (Gageler J); R v Pham (2015) 256 CLR 550, [56] (Bell and Gageler JJ). 26 Written submissions of the applicant DPP dated 28 January 2026, [30]. 27 Written submissions of the applicant DPP dated 28 January 2026, [30]. -- 11 of 26 -- [2026] SASCA 33 Livesey P 8 discretion (as applies in some other Australian jurisdictions), the High Court continues to recognise the important differences between appeals by the prosecution and appeals by offenders:28 As explained in the joint reasons in Green, Crown appeals are distinguished from offender appeals against sentence in that their primary purpose is not directed to the correction of error in the particular case, but rather, to laying down principles for the guidance of sentencing judges.29 And as their Honours also explained, the circumstances may be such that any guidance provided to sentencing judges is limited, while allowing the appeal may occasion injustice.30 Among the circumstances that their Honours identified as enlivening the residual discretion is delay in the appeal process.31 Another circumstance that may enliven the discretion is the imminence of the offender’s release from custody, on parole or otherwise.32 27 The second reason why the Director’s invitation must be rejected is more substantial. To the extent that there is any ‘recalibration’ required, that has already and necessarily occurred. For some years now, there has been a greater emphasis given to the interests of victims in the sentencing process. That is reflected in a number of features of the modern sentencing process,33 as well as in the decisions of this Court following various Royal Commissions which have revealed a range of matters which assist contemporary understanding of the effects on victims of criminal offending.34 It is also reflected in this Court’s recognition of the care which must be exercised in connection with the language used by appeal courts and sentencing courts to describe criminal offending, or aspects of it, concerning victims.35 28 It betrays a misunderstanding of the task undertaken by this Court to suggest that it fails to adequately heed, or worse ignore, the interests of victims when reviewing whether a sentence is so low as to require this Court’s principled intervention, particularly where this Court is required to determine whether the sentence is so low that it tends to undermine public confidence in the administration of justice.36 This Court cannot determine whether a sentence is 28 Cumberland v The Queen (2020) 94 ALJR 656, [6] (Bell, Gageler and Nettle JJ). 29 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, [1] (French CJ, Crennan and Kiefel JJ). 30 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, [2] (French CJ, Crennan and Kiefel JJ). 31 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, [2] (French CJ, Crennan and Kiefel JJ). 32 Munda v Western Australia (2013) 249 CLR 600, [77] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ). 33 Reflected in various provisions of the Sentencing Act, including ss 13, 14, 15, 15A and 16, together with the role given to victim impact statements and the way these are led before the sentencing court. 34 See, for example, the references made to the Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report, in R v Harris (2023) 144 SASR 246, [39] (Livesey P, Lovell and Bleby JJA), and the Royal Commission into Family, Domestic and Sexual Violence, in Millwood v The King [2024] SASCA 84, [32] (Livesey ACJ and Bleby JA). 35 Brooker v The King [2024] SASCA 135, [88] (Livesey P, David JA and Bond AJA): ‘and, by their reasons, give due recognition to the interests of victims and their families’. R v Harris (2023) 144 SASR 246, [54] (Livesey P, Lovell and Bleby JJA): ‘Associated with these considerations is the need for sentencing courts to avoid labelling the context in which abuse occurs as ‘loving’, or ‘caring’ or ‘consensual, but not in a legal sense’ for stereotypes such as these risk occluding the risk of harm and, in effect, treating the victim’s acquiescence as a form of mitigation’. 36 Which is now preferred over the archaic, imprecise phrase ‘shock the public conscience’. See generally R v Harris (2023) 144 SASR 246, [48] (Livesey P, Lovell and Bleby JJA), and the cases there cited, -- 12 of 26 -- [2026] SASCA 33 Livesey P 9 appropriate, let alone so inadequate that intervention on a prosecution appeal is warranted, without having regard to all of the relevant circumstances and these necessarily, and explicitly, include those relating to the victims of criminal offending. Conclusion 29 For these reasons, together with the reasons of Bleby JA concerning the effects of delay on the respondent, permission to appeal should be refused. 30 S DOYLE JA: I agree with Bleby JA’s reasons and proposed order. 31 As a member of the Court in Cappo v The King,37 it is appropriate that I indicate my express agreement with Bleby JA’s re-framing of the ‘second issue’ arising under s 96(10)(b) of the Sentencing Act 2017 (SA). 32 As his Honour has explained, an appreciation of the ‘gateway’ use of the words ‘appropriate that the sentence be suspended’ in s 96(10)(b) of the Sentencing Act is important. Once it is appreciated that the determinative criterion for suspension, in a case such as the present, remains ‘good reason’ to suspend under s 96(1), there is no impetus to construe those words in s 96(10)(b) as requiring consideration of the full range of sentencing considerations (including those which fall outside of an appropriately broad understanding of ‘the circumstances of the offending’). 33 I remain of the view that it is difficult to see how a determination of whether it is ‘appropriate’ to suspend could sensibly be made without regard to that full range of considerations. But s 96(10)(b) must be construed with an appreciation that the reference to ‘appropriate’ in that subsection is directed only to whether the circumstances of the offending are such that it is appropriate that the case be treated as falling within the ‘prescribed circumstances’ exception to the s 96(3) proscription against suspension for certain types of offending (including serious sexual offending). Put another way, a contextual construction of s 96(10)(b) reveals that the words ‘appropriate that the sentence be suspended’ really mean no more than that it is appropriate that suspension be available as a sentencing option under s 96(1). 34 This contextual consideration in construing s 96(10)(b) was not addressed in the critical passage from the Court’s reasons in Cappo v The King.38 Upon reflection, I agree that the issue should be framed in the manner described by Bleby JA. together with R v Henderson (2023) 142 SASR 507, [34], [39] (Livesey P and David JA), [135]-[138] (Nicholson AJA); R v Singh [2024] SASCA 81, [30]-[31] (Livesey ACJ, Doyle and David JJA); R v Berry [2024] SASCA 116, [8]-[11] (S Doyle JA, Bleby JA and Hall AJA); R v Ametovic [2024] SASCA 153, [60]-[64] (S Doyle JA, Bleby JA and B Doyle AJA); R v Sadik [2025] SASCA 46, [87]-[91] (Livesey P, S Doyle and David JJA). 37 Cappo v The King [2025] SASCA 55. 38 Cappo v The King [2025] SASCA 55 at [74] (Livesey P, S Doyle and David JJA). -- 13 of 26 -- [2026] SASCA 33 Bleby JA 10 35 BLEBY JA: This is an application by the Director of Public Prosecutions for permission to appeal against sentence. The respondent pleaded guilty to one count of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). On 19 May 2025, a judge of the District Court sentenced the respondent. The judge indicated a starting point of 20 months’ imprisonment. He reduced that by five per cent on account of the plea of guilty, making one year and seven months. He fixed a non-parole period of one year. He reduced both the head sentence and the non-parole period by seven months on account of the respondent’s time spent in custody and on home detention bail. That made a sentence of one year and two months with a non-parole period of seven months. 36 The judge was satisfied that good reason existed to suspend the sentence and did so upon the respondent entering into a bond to be of good behaviour in the sum of $100 for a period of 18 months. He also made an intervention order against the respondent for the protection of the victim. 37 The application for permission to appeal challenges the decision to suspend the sentence. The issues raised by the appeal are: • whether the judge erred in suspending the sentence upon satisfaction that there was ‘good reason’ to suspend in circumstances where his discretion to suspend was only enlivened if he was satisfied that the offending occurred in ‘prescribed circumstances’; and • if the judge did so err, whether the offending occurred in ‘prescribed circumstances’. 38 These issues raise an antecedent question of construction of the relevant provisions of the Sentencing Act 2017 (SA). Background 39 At the time of the offending on 1 February 2023, the victim was 15 years and 11 months old. The respondent was 18 years and six months old. The victim was under the guardianship of the Minister. The respondent had been under the Minster’s guardianship prior to turning 18. 40 The respondent and the victim had spent time together in September 2021, when they both lived in the same departmental residential unit. At that time, the respondent was 17 and the victim was 14. On 28 September 2021, care workers called the police who attended and arrested the respondent on suspicion of having engaged in unlawful sexual intercourse with the victim. The respondent vehemently denied that sexual intercourse had occurred. He said he would never do something like that and that he would not have sex with a teenager in care. Police told the respondent on that occasion that the victim was 14. -- 14 of 26 -- [2026] SASCA 33 Bleby JA 11 41 On 1 February 2023, the respondent and the victim arranged to meet. They travelled into the city together. The respondent purchased alcohol for them both. Later, they travelled by bus to the respondent’s house. CCTV footage in the city showed them to be holding hands and being affectionate towards each other. 42 When they were at the respondent’s house, they both drank alcohol and smoked cannabis. They engaged in penile/vaginal sexual intercourse. Later in the day, following a disagreement, the victim left. She returned later in the evening, together with her father and two other adult men. The three men assaulted and threatened the respondent. 43 Police located Snapchat messages on the respondent’s phone that had been sent on 1 February 2023 when the respondent and victim were together. The messages included the following: Respondent: I got someone that will give you head Recipient: For a marlin 7 I need a bike lock asap Respondent: blonde 17-year-old Recipient: I need any bike accessories Ew bro no Wtf cubt You pimping kids out lad? You fukn serious? Respondent: The black lock and a lock with code pin numbers no Recipient: Yeah Respondent: no I’m not pumping kids out what the fuck is wrong with you I was messing around she’s 19 bro Recipient: Why you asking that I’m a 33 year old man cubt 44 There was a disputed facts hearing over whether the respondent knew or suspected the victim was under 17 at the time of the offending and whether the respondent was the person who sent the messages set out earlier. The judge found that the respondent knew the victim was not yet 17 on 1 February 2023, by reason of the information that the police gave him in September 2021. The judge further found that the respondent was the author of the messages. -- 15 of 26 -- [2026] SASCA 33 Bleby JA 12 45 The victim did not provide a victim impact statement. The Director submitted, and it can be accepted, that in cases involving sexual offending against a child, the Court can infer without direct evidence that the victim is at risk of suffering a significant level of psychological harm.39 46 The respondent had a dysfunctional and traumatic childhood. He suffered abuse and neglect as a young child. He was placed under the guardianship of the Minister when he was nine years old. When he was 10 and 11, he was physically and sexually abused by residential care workers. He commenced experimenting sexually at 11. He had numerous casual sexual encounters as a youth and became desensitised to inappropriate sexual conduct. 47 The respondent was introduced to drugs at the age of eight and became addicted to methylamphetamine in his later teenage years. Following being placed on home detention bail on 4 October 2024, he was largely able to abstain from using illicit substances. 48 Dr Loraine Lim prepared a forensic psychological report, dated 26 February 2025, for sentencing purposes. Dr Lim considered that the respondent was and remained a behaviourally and emotionally dysregulated youth. He was significantly prone to bouts of emotional dysregulation. These would often manifest in anger outbursts and impulsive and reckless conduct. This conduct took the form of sexual promiscuity, substance abuse, attempts at self-harm and pathological gambling. Dr Lim considered that the respondent’s pathological gambling, his history of polydrug abuse and his sexual promiscuity were currently his three main maladaptive coping strategies. The respondent would rely on them interchangeably as methods of self-soothing when he was in a state of extreme psychological distress. 49 Dr Lim considered that the respondent was likely to have been developing an emerging Borderline Personality Disorder at the time of the offending and when she assessed him. This disorder was overlaid on a background of a co-occurring complex Post-traumatic Stress Disorder and Oppositional Defiance Disorder, which the respondent developed during his childhood. The respondent met the criteria for a Polysubstance Use Disorder and an Impulse Control Disorder, on account of his pathological gambling. 50 Dr Lim considered that the respondent had developed insight into the offending and learned that it was inappropriate to be driven primarily by impulse when choosing sexual partners. However, the respondent had little empathy for the victim and had a moderate to high risk of sexual recidivism. 51 The Director submitted that this aspect of the assessment should be given no weight, as Dr Lim made it without being informed of the respondent’s knowledge 39 R v McIntyre (2020) 138 SASR 17 at [58] (Doyle J, Stanley and Hughes JJ agreeing); R v Allpass (1993) 72 A Crim R 561 at 565 (Gleeson CJ, Hunt CJ at CL and McInerney J). -- 16 of 26 -- [2026] SASCA 33 Bleby JA 13 that the victim was underage or that the respondent had previously been put on notice that conduct of this kind constituted a criminal offence. 52 The respondent had no prior history of sexual offending. His criminal antecedents as a youth were comprised, in the main, of offences of dishonesty, assault and property damage. 53 While the respondent was on bail for the present offending, he committed the offences of hindering police, possessing a controlled drug and possessing equipment to use with a controlled drug. His compliance with his obligations while on home detention bail was mixed. As already noted, he remained largely abstinent from drugs. However, his response to supervision was poor, missing seven of 19 supervision appointments and failing on multiple occasions to maintain the charge on his electronic bracelet. He did not engage with any treatment or intervention services, despite being referred to several. He took no steps to obtain a mental health care plan, despite being requested to do so. The sentencing regime 54 In order to understand the Director’s complaints about the judge’s decision to suspend the sentence, it is necessary to rehearse some of the statutory provisions that both create and circumscribe the power to suspend a sentence of imprisonment. 55 Section 96(1) of the Sentencing Act provides that subject to that section, if a court has imposed a sentence of imprisonment on a defendant it may, if it ‘thinks that good reason exists for doing so’, suspend the sentence on condition that the defendant enter into a bond, the conditions of which the section then prescribes. 56 Section 96(3) then prescribes circumstances in which a sentence of imprisonment may not be suspended. One such circumstance is that provided for in s 96(3)(ba), namely where the defendant is being sentenced ‘as an adult for a serious sexual offence’. 57 The section makes further provision at some length, including by fashioning limited exceptions to the prohibitions on suspending a sentence. One of those circumstances is found in the definition of ‘serious sexual offence’, recalling that in the present case, the respondent was sentenced for one count of unlawful sexual intercourse, contrary to s 49(3) of the CLCA. Section 96(9) includes in the definition of ‘serious sexual offence’: (a) … (ii) … (A) an offence under section 49 [of the CLCA] (unlawful sexual intercourse), other than an offence that occurred in prescribed circumstances … -- 17 of 26 -- [2026] SASCA 33 Bleby JA 14 (Emphasis added.) 58 Section 96(10) then provides: (10) For the purposes of this section, an offence occurred in prescribed circumstances if— (a) the defendant was, at the time of the offence, 20 years of age or less; and (b) the circumstances of the offending, including the victim's age and the age difference between the defendant and the victim, are such that it is appropriate that the sentence be suspended; and (c) the defendant was not, at the time of the offence, a person in a position of authority in relation to the victim. 59 In the present case, it was not contentious that the respondent satisfied the circumstances prescribed in paragraphs (a) and (c) of this sub-section. The contest over whether the judge applied paragraph (b), and whether the circumstances prescribed by this paragraph were in any event met, provoked an argument over interpretation of the paragraph. The parties joined issue over what was capable of constituting ‘the circumstances of the offending’ and what, in consequence, the Court could have regard to in determining whether it was appropriate that the sentence be suspended. 60 This Court considered the interpretation of s 96(10)(b) recently in Cappo v The King (‘Cappo’).40 In the present matter, the Director challenged an aspect of the Court’s treatment of the section in that case. In Cappo, the Court said that the application of s 96(10)(b) raised two matters of principle:41 First, whether a sentencing judge when assessing the circumstances of the offending can have regard to a defendant’s personal circumstances and other subjective matters as providing the context in which the offences were committed or as informing the circumstances of the offending. Secondly, when assessing whether the circumstances of the offending are such that it is appropriate to impose a suspended sentence or make a home detention order, whether regard should be had to the full range of sentencing considerations. As to the first issue, under ss 71(6) and 96(10), the focus of any inquiry as to the circumstances of the offending must be on the victim’s age and the age difference between the defendant and the victim. However, the words used in ss 71(6) and 96(10) do not limit a consideration of the circumstances of the offending to those matters. Moreover, any such assessment may (and often will) be informed by other subjective matters which cannot be neatly extricated from the objective features of the offending. These may include matters such as a defendant’s motive for the offending, his or her ability to appreciate the gravity of the offending in the context of a defendant’s mental health or emotional maturity, the relationship between the defendant and the victim including any personal history between the parties, and other factors personal to a defendant which may inform the circumstances of the offending. These matters are but examples and there are no hard and fast rules as to 40 [2025] SASCA 55. 41 Cappo v The King [2025] SASCA 55 at [72]-[74] (Livesey P, S Doyle and David JJA). -- 18 of 26 -- [2026] SASCA 33 Bleby JA 15 the metes and bounds of what subjective factors may inform the circumstances of the offending. As to the second issue, a sentencing judge when determining whether the circumstances of the offending are such that it appropriate to suspend the sentence or make a home detention order is required to undertake that exercise by having regard to the full range of sentencing considerations. That is so because of the individualised nature of the sentencing exercise. For example, one can imagine a situation where two defendants commit sexual offences in very similar circumstances (having regard to their age and the difference in age between each defendant and victim) but having regard to their respective personal circumstances, including matters such as the antecedents of each defendant and differing prospects of rehabilitation, a suspended sentence or home detention order may be appropriate for one defendant and not the other defendant. In addition, sentencing objectives such as principles of general and personal deterrence, the paramountcy to be provided the safety of the protection of the community, and indeed condign punishment, may weigh more heavily when sentencing one defendant when compared with another. It follows that a sentencing judge is required to have regard to the complete range of sentencing considerations when considering whether the circumstances of the offending make it appropriate to suspend a sentence or make a home detention order. 61 The Director did not take issue with the Court’s determination of the first issue, accepting that circumstances personal to a defendant may have a bearing on understanding the circumstances of the gravity of, and moral culpability attached to, the offending. 62 As to the second issue, however, the Director disputed that the individualised nature of the sentencing task enabled the court to take into account the full range of sentencing considerations in determining whether it is appropriate that the sentence be suspended. In the Director’s submission, the structure of the scheme had the effect that, assuming paragraphs (a) and (c) of s 96(10) were satisfied, there still must be something about the circumstances of the offending that made it appropriate to suspend the sentence, in exception to the prohibition on suspension that is established by ss 96(3)(ba) and 96(9). 63 The effect of this, in the Director’s submission, was that the question of suspension was confined to a narrow band of considerations, as opposed to all the individual sentencing factors in s 11(1) of the Sentencing Act. I note, in that regard, that s 11 does contemplate that other provisions may remove certain sentencing factors from the Court’s consideration. Section 11(3) provides: (3) The court must not have regard to any of the factors in sentencing if it would be contrary to an Act or law to do so (and the fact that any such factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence). 64 The Director’s submission as to what could, and could not, be taken into account as ‘circumstances of the offending’ in determining whether it was appropriate that the sentence should be suspended, is best encapsulated in his approach to the matters that the judge found gave rise to good reason for suspending the sentence. The judge said: -- 19 of 26 -- [2026] SASCA 33 Bleby JA 16 I accept there are a number of factors which may suggest suspension is not appropriate. [The victim] was a particularly vulnerable child given her background. I am also satisfied that you knew she was under 17 and yet you gave her alcohol and cannabis. Your criminal history also suggests that personal deterrence is a matter of some weight in determining the appropriate sentence for this matter. I do, however, accept that many of your attitudes reflect the dreadful upbringing you have had, the lack of any positive role models and that the life of a child in the care of the Minister frequently requires the child to deal with matters of a more adult nature, even though they are ill-equipped to deal with them. That you have been through many of the same things that [the victim] has been through would, for example, perhaps not have alerted you to the fact she is a very vulnerable individual who needs to be protected and not taken advantage of. I note you have a pending matter in court, but since your arrest for this matter it would appear this is now the longest period you have been offence free for many years. I accept your lack of engagement with the department over the last five months is of concern, but I also accept it coincided with at least one traumatic event in your life. In light of your guilty plea, your very young age, the relatively small age gap between you and [the victim], your dysfunctional upbringing, the risks inherent in you spending a significant period of imprisonment now at your age, and the fact that you have spent over four months in custody already, are such that I am satisfied that good reason exists to suspend the sentence I have imposed. 65 Focusing on the last of these paragraphs, the Director submitted that the guilty plea was not a circumstance of the offending. The respondent’s dysfunctional upbringing could be a circumstance of the offending, if it gave some insight into the respondent’s moral culpability. The risks inherent in being imprisoned at a young age were not. Neither was time spent in custody. 66 This paragraph was sufficient, in the Director’s submission, to show that the judge, in considering whether to suspend, impermissibly took into account matters that extended beyond the ‘circumstances of the offending’. 67 The Director’s submission, if accepted, would have significant consequences for the sentencing exercise. That does not mean that the submission is wrong, but it is necessary to articulate those consequences. First, the submission recognises that the concept of ‘the circumstances of the offending’ is less concrete than might first be thought. The matters capable of forming the circumstances of the offending will depend on the facts, as illustrated by the Director’s concession that the respondent’s dysfunctional upbringing might, in this case, be a circumstance of the offending. 68 In any given case, there may be some difficulty in identifying with precision what is incorporated in ‘the circumstances of the offending’. By way of further example, s 11(1) of the Sentencing Act includes, in its prescription of relevant considerations, (d) the defendant’s character, general background and offending history. Character and general background may in some circumstances be properly -- 20 of 26 -- [2026] SASCA 33 Bleby JA 17 characterised as circumstances of the offending if they inform the defendant’s moral culpability. 69 This leads to the second observation, that on the Director’s construction of s 96(10)(b), some matters ordinarily relevant to the sentencing exercise would be excluded from consideration, not being ‘circumstances of the offending’. These may include, having regard again to s 11(1), (d) the defendant’s offending history, and would include (e) the likelihood of the defendant reoffending and (g) the defendant’s remorse for the offence. 70 Third, the reading for which the Director contends would likely have some surprising results. This again is not a necessary bar to its correctness. However, it would mean that in considering the question of appropriateness to suspend, the Court would be precluded from having regard to some matters that otherwise might, in the circumstances of the case, indicate that suspension is manifestly not appropriate. 71 These observations require consideration of a further aspect of the Director’s submission. This was that in a case to which s 96(1) attaches via the requirement of prescribed circumstances, the power to suspend is conferred, implicitly, by s 96(10) itself. On the Director’s argument, that is where the inquiry ends, which supports the inability of the Court, when considering suspension, to inquire beyond the three paragraphs that define prescribed circumstances. 72 I do not accept this construction. Section 96(10) is a definitional section within a broader scheme. To reiterate, s 96(1) gives the Court power to suspend a sentence of imprisonment if it thinks that good reason exists for doing so. That power is expressed to be subject to the section. Section 96(3) then sets out circumstances in which a sentence of imprisonment may not be suspended ‘under this section’. One of those circumstances is that in paragraph (ba), where the defendant is being sentenced as an adult for a serious sexual offence. Section 96(9) then defines ‘serious sexual offence’ as including, relevantly, an offence under s 49 of the CLCA (unlawful sexual intercourse) ‘other than an offence that occurred in prescribed circumstances’. Section 96(10) then sets out, in the three paragraphs already discussed, the prescribed circumstances. 73 This scheme, in its terms, establishes an exception to a specific prohibition on the power to suspend that is otherwise granted by s 96(1). Section 96(10) defines the content of that exception. Both the text and surrounding context of this subsection speak against the existence of the implied power for which the Director contends. Rather, they operate as successive qualifiers to the power in s 96(1). 74 That does not, however, exhaust the question of the existence of an implied power to suspend residing in s 96(10). The Director observed that this section was introduced to give effect to what the Attorney-General, in the Second Reading -- 21 of 26 -- [2026] SASCA 33 Bleby JA 18 Speech on the introduction of the Bill for the relevant amendments,42 described as a ‘young love’ exception to the prohibition on suspension of a sentence for an offence under s 49.43 75 The paragraphs of this subsection reflect this intention. Paragraph (a) confines the exception to where the defendant is 20 years or younger. Paragraph (c) excludes situations of the defendant being in a position of authority in relation to the victim. These two paragraphs prescribed thresholds that can be understood as establishing outer limits to a ‘young love’ exception. However, paragraph (b) employs the altogether more abstract concept of ‘appropriateness’. That is a matter for evaluation by the sentencing judge. The paragraph does not circumscribe the question of appropriateness by reference to, for example, whether the defendant and victim were ‘in love’. It is difficult to see how Parliament could have achieved such a circumscription. 76 That being the case, the judge is left with two objective criteria and an evaluative task of determining whether it is ‘appropriate that the sentence be suspended’ by reference to (all) the circumstances of the offending. However, a positive conclusion with respect to all three criteria only then permits the judge to consider, pursuant to s 96(1), whether good reason exists for suspending the sentence. That then requires consideration of all relevant factors prescribed by s 11 of the Sentencing Act. While Parliament was clearly enough motivated by the desirability of having a ‘young love’ exception to the prohibition on suspension, the legislated exception is not confined to that, albeit that it has the potential to encompass, and indeed lean towards, situations that may be described in that way. 77 Further, as identified above, to construe the scheme to the effect that s 96(10) alone exhausted the question of suspension would have the potential to lead to absurd outcomes, including outcomes that would undermine the Act’s express primary purpose of protecting the safety of the community.44 78 In a case such as the present, the starting point is that Parliament has prohibited suspension of a sentence of imprisonment. Section 96(10) gives content to the ‘prescribed circumstances’ that operate in exception to that prohibition. A judge is required to evaluate whether prescribed circumstances exist. In the case of s 96(10)(b), that requires an assessment of appropriateness by reference to the circumstances of the offending. Assuming the judge reaches a positive conclusion in this regard, the judge is then required to consider, having regard to all considerations made relevant under the Sentencing Act, whether good reason exists to suspend the sentence. 79 It follows that I would, with respect, frame the Court’s answer to the ‘second issue’, as described in Cappo,45 a little differently. I respectfully agree that 42 Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill 2019. 43 Hansard, Wednesday 13 February 2019, p 4599 (HA). 44 Sentencing Act 2017 (SA), s 3. 45 Cappo v The King [2025] SASCA 55 at [74] (Livesey P, S Doyle and David JJA). -- 22 of 26 -- [2026] SASCA 33 Bleby JA 19 ultimately, in deciding whether to suspend a sentence, the Court is required to take into account all sentencing considerations. That is done in service of its ultimate inquiry into whether ‘good reason’ exists to suspend the sentence within the meaning of s 96(1). 80 Prior to undertaking that inquiry, the Court must assess the question of appropriateness, as framed in s 96(10)(b), by reference to the circumstances of the offending. That is a gateway task, rather than a determinative inquiry. It will likely channel the Court’s attention to whether the offending occurred in circumstances of ‘young love’, or the like, although that is not an exhaustive description of when the circumstances of the offending may make it appropriate that the sentence be suspended. If the Court determines that the circumstances of the offending are such that it is appropriate that the sentence be suspended, it can then go on to consider whether good reason exists to do so. On that inquiry, factors external to ‘the circumstances of the offending’ might further recommend, or speak against, the existence of ‘good reason’ to suspend. 81 This construction imposes a task on the Court that is partly repetitious. However, no other construction gives effect to the convoluted sentencing structure that employs different abstractions in succession. The appeal 82 I have set out the judge’s consideration and determination of the question of suspension earlier. The Director’s essential complaint is to the effect that the judge applied the ‘good reason’ test in s 96(1), rather than the criteria of ‘prescribed circumstances’, and specifically the test for prescribed circumstances in s 96(10)(b) where the respondent was being sentenced as an adult for a serious sexual offence. 83 The judge commenced his analysis by observing that there were ‘a number of factors which may suggest suspension is not appropriate’. He concluded by expressing his satisfaction that ‘good reason’ existed to suspend the sentence. The factors he brought to bear manifestly extended beyond ‘the circumstances of the offending’. 84 The judge did not engage in the process that I consider the scheme requires. That is hardly surprising; while this Court delivered judgment in Cappo a few days after the judge sentenced the respondent, it had not previously articulated the analysis as I have here. What was missing from the judge’s approach is what I have described as the ‘gateway’ analysis of prescribed circumstances, which must return a positive conclusion of appropriateness by reference to the circumstances of the offending, before the broader question of ‘good reason’ may be embarked upon. 85 Had the judge first engaged in that gateway analysis, his conclusion may have been different. The analysis would have included the respondent’s knowledge of the victim’s age, his supplying her with alcohol and cannabis, and his text messaging. It would not have included, for example, the guilty plea, the risks of -- 23 of 26 -- [2026] SASCA 33 Bleby JA 20 imprisonment at the respondent’s age and the time the respondent had already spent in custody, all of which were matters that the judge brought to bear. 86 It is not necessary for present purposes to be more precise about what did, and did not, constitute the circumstances of the offending for the purposes of the ‘prescribed circumstances’ assessment. Several circumstances of the offending spoke against the appropriateness of the sentence being suspended; these needed to be addressed in that gateway context. Again, while this does not exhaust the inquiry, these circumstances indicated, for example, that this was not a mutual ‘young love’ situation. For reasons which were understandable, with respect, the judge did not address these factors separately from and prior to considering the broader range of sentencing considerations. That was an error. Permission to appeal 87 In R v Ametovic46 this Court explained its understanding of the High Court’s references47 to the power to entertain Crown appeals against sentence being confined to ‘rare and exceptional’ cases:48 In our view, “rare and exceptional” is better seen not as a test or criterion, or even principle, to be applied or satisfied in a particular case, but rather as a compendious reference to, or reflection of, the importance of restraint in exercising the Court’s jurisdiction to entertain Crown appeals against sentence. It is a reference to, or reflection of, the need to give separate and distinct consideration to whether there is not only error in the sentencing discretion, but also a public interest in intervention that outweighs the hardship to the respondent in exposing him or her to the double jeopardy associated with being resentenced. As such, the phrase directs attention to the nature of the error and hardship, by reference to considerations such as those listed earlier in these reasons. 88 In the much earlier case of R v Osenkowski (‘Osenkowski’), King CJ offered content to this principle of restraint:49 The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience. 89 In the course of arguing for permission in the present matter, the Director exhorted the Court to examine the language deployed in framing considerations relevant to the grant of permission. He did not urge any different test. Rather, he submitted that the language adopted in cases such as Osenkowski50 and Everett v 46 [2024] SASCA 153. 47 Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson and Gaudron JJ). 48 R v Ametovic [2024] SASCA 153 at [93] (S Doyle JA, Bleby JA and B Doyle AJA). 49 R v Osenkowski (1982) 30 SASR 212 at 213. 50 R v Osenkowski (1982) 30 SASR 212 at 213. -- 24 of 26 -- [2026] SASCA 33 Bleby JA 21 The Queen51 did not reflect, or reflect fully, developed contemporary understandings of the impact of certain types of offending on victims. 90 There can be no doubt that society as a whole has developed a more acute understanding of the enduring nature and depth of injury to child victims of sexual offences. These are reflected in changed sentencing standards. The prohibition on suspending a sentence for an offence under s 49 of the CLCA, other than in ‘prescribed circumstances’, is one of a number of legislative responses to this changed understanding. 91 It is not difficult to see that, when the adequacy of a sentence is being examined in the impersonal context of appellate review, judicial language may appear to obscure the impact on a victim. When an appellate court asks whether a sentence is so low as to undermine confidence in the administration of justice, it is examining not only society’s outrage at the damage done to its fabric as a civil society, but also its outrage on behalf of the victim. That outrage is informed by contemporary understandings of the damage that offending – here sexual offending against children – can cause. The public interest in intervening, which must be weighed against considerations of double jeopardy, necessarily incorporates contemporary understandings of the effects of such offending on victims. 92 This is not to suggest any different approach to the weighing exercise or the exceptional character of Crown appeals that the High Court has repeatedly and recently endorsed.52 It is simply to acknowledge the gravity of that which is brought to account in the process. Here, that is informed by an understanding of the injury caused to a 15-year-old girl which, as observed earlier, can be inferred even in the absence of direct evidence.53 Consideration of whether to grant permission to appeal nevertheless remains an exercise of weighing competing public interests. The competing double jeopardy considerations and the concomitant principle of restraint remain as forceful as ever. 93 The judge sentenced the respondent on 15 May 2025 before recalling that sentence and re-sentencing him on 19 May 2025. This Court delivered its judgment in Cappo on 22 May 2025. The Director filed the Notice of Appeal against Sentence on 6 June 2025, within time. It appears that the matter was listed for Callover in the ordinary course on 21 July 2025, at which time the hearing date of 10 February 2026 was set. The Director did not request that the matter be expedited. The respondent consequently had the benefit of the suspended sentence for almost nine months before the appeal was heard. That was in circumstances 51 (1994) 181 CLR 295 at 299-300. 52 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [16] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [1] (French CJ, Crennan and Kiefel JJ); [112] (Bell J); CMB v Attorney-General (NSW) (2015) 256 CLR 346 at [55] (Kiefel, Bell and Keane JJ); Cumberland v The Queen (2020) 94 ALJR 656 at [35] (Bell, Gageler and Nettle JJ). 53 R v McIntyre (2020) 138 SASR 17 at [58] (Doyle J, Stanley and Hughes JJ agreeing); R v Allpass (1993) 72 A Crim R 561 at 55 (Gleeson CJ, Hunt CJ at CL and McInerney J); R v King [2009] NSWCCA 117 at [40]-[41]. -- 25 of 26 -- [2026] SASCA 33 Bleby JA 22 where the Director’s application necessarily challenged an aspect of this Court’s reasoning in Cappo. While the judge sentenced the respondent prior to Cappo being delivered, his approach was broadly consistent with the approach outlined in that decision. 94 The Director mounted a forceful case that the respondent did not satisfy the ‘prescribed circumstances’ test. However, in my view, the hardship of now exposing the respondent to the double jeopardy associated with him being resentenced strongly outweighs the public interest in intervening.54 It is sufficient, having regard especially to the time that has passed during which Cappo would have given the respondent some comfort that his sentence was on firm ground, that the Court clarifies the correct approach to sentencing in a case such as this without granting permission to appeal. Conclusion 95 I would refuse the application for permission to appeal. 54 See Cumberland v The Queen (2020) 94 ALJR 656 at [35] (Bell, Gageler and Nettle JJ). -- 26 of 26 --