THE KING v EMILE EDHOUSE [2026] SASCA 36

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE SOULIO) DCCRM-23-026445 Applicant: THE KING Counsel: MS T AMOS WITH MS S HALIKIAS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: EMILE EDHOUSE Counsel: DR J MARCUS - Solicitor: WOODS & CO LAWYERS Hearing Date/s: 11/03/2026 File No/s: SCCRM-25-052059 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 EDHOUSE [2026] SASCA 36 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice B Doyle) 10 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 12 counts of child sexual offences occurring between 26 May 2022 to 28 June 2022. On 18 December 2025, the respondent was convicted and discharged on a bond to be of good behaviour under s 97 of the Sentencing Act 2017 (SA). The Director’s sole ground of appeal was that the sentence imposed was manifestly inadequate. Held (by the Court), granting the Director permission to appeal, allowing the appeal, setting aside the bond under s 97 and resentencing the respondent: 1. Having regard to the nature and seriousness of offending, it was not open to the sentencing judge to impose a bond under s 97 of the Sentencing Act. 2. The double jeopardy considerations in the respondent’s circumstances are outweighed by the need to correct a sentence that has real potential to undermine public confidence in the administration of justice. -- 1 of 30 -- 3. The respondent is resentenced to a period of imprisonment with a head sentence of seven years and 24 days, with a non-parole period of two years, 11 months and nine days. Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) ss 63, 63A, 63B(1), 63B(3); Guardianship and Administration Act 1993 (SA) s 32; Sentencing Act 2017 (SA) ss 3, 4, 15(2)(b), 26(1), 40(3), 40(4), 53, 54, 71(2)(b)(ii)(A), 71(6), 96(1), 96(3)(ba), 96(9), 96(10), 97, referred to. Ackland v The King [2025] SASCA 15; Brooker v The King [2024] SASCA 135; Cappo v The King [2025] SASCA 55; Griffiths v The Queen (1977) 137 CLR 293; House v The King (1936) 55 CLR 499; R v Ametovic [2024] SASCA 153; R v Brandon [2024] SASCA 9; R v Bradley [2024] SASCA 56; R v D (1997) 69 SASR 413; R v Guode (2020) 267 CLR 141; R v Lian (2023) 144 SASR 303; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Perry [2022] SASCA 127; R v Singh [2024] SASCA 81; R v Urch [2024] SASCA 28; R v Verdins (2007) 16 VR 269, considered. -- 2 of 30 -- R v EDHOUSE [2026] SASCA 36 Court of Appeal – Criminal: Livesey P, Bleby and B Doyle JJA 1 THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against sentence. On 18 December 2025, a judge of the District Court sentenced the respondent for 12 child sexual offences occurring between 26 May 2022 and 28 June 2022. The respondent had pleaded guilty to the offences. The judge convicted the respondent and, acting under s 97 of the Sentencing Act 2017 (SA), discharged him on a bond to be of good behaviour for three years in the amount of $1,000. The sole ground of appeal is that the sentence is manifestly inadequate. 2 The offending was extremely serious. The offences to which the respondent pleaded guilty occurred between 26 May 2022 and 28 June 2022. They were: a. aggravated disseminating child exploitation material (‘CEM’), contrary to s 63(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (maximum penalty 12 years’ imprisonment) (Count 7); b. aggravated communicating with the intention of making a child amenable to sexual activity, contrary to s 63B(3)(b) of the CLCA (maximum penalty 12 years’ imprisonment) (Counts 9 and 11); c. communicating with the intention of making a child amenable to sexual activity, contrary to s 63B(3)(b) of the CLCA (maximum penalty 10 years’ imprisonment) (Count 10); d. possessing CEM, contrary to s 63A of the CLCA (maximum penalty 5 years’ imprisonment) (Count 20); e. inciting an indecent act by a child, contrary to s 63B(1)(a) of the CLCA (maximum penalty 10 years’ imprisonment) (Count 21); f. producing CEM, contrary to s 63 of the CLCA (maximum penalty 10 years’ imprisonment) (Counts 22, 24 and 26); g. procuring a child for sexual activity, contrary to s 63B(3)(a) of the CLCA (maximum penalty 10 years’ imprisonment) (Counts 23 and 25); h. aggravated possessing of CEM, contrary to s 63A of the CLCA (maximum penalty 7 years’ imprisonment) (Count 27); i. failing to comply with bail agreement, contrary to s 17(1) of the Bail Act 1985 (SA) (maximum penalty 2 years’ imprisonment) (Counts 1 and 2 on the file called up from the Magistrates Court). -- 3 of 30 -- [2026] SASCA 36 The Court 2 The offending 3 On 31 May 2022, police received information suggesting the respondent possessed CEM. This included a video recording in which the respondent displayed and disseminated child exploitation material to a social media user while naked and masturbating (Count 7). The video recording captured additional uncharged conduct, including the respondent accessing CEM on an identified website and masturbating following the display of CEM on his computer. 4 On 22 June 2022, police arrested the respondent at his address and seized his electronic devices. The respondent participated in a record of interview and made admissions. These included the following: • he understood CEM to mean videos and photographs of children under 16 ‘in the sexual manner’; • he mostly had videos (as opposed to images) of CEM, which showed ‘everything’; • he accessed CEM using websites with ‘extras’ that enabled the user to ‘access other areas’; • he had been looking at CEM since he was 14. His preference was ‘mostly girls’; • he accessed CEM ‘more out of depression’ and looking at it made him feel like he was ‘forcing myself’. His other, depressive, self had been hoping to be arrested so he could finally commit suicide; • he would look at CEM once per night, and had tried to stop looking at it many times; • he would masturbate while looking at CEM but was not sexually aroused by it. Rather, he was in ‘a different state of mind’; • he would use ‘kid[s’] versions of dating apps’ to receive CEM; • he would receive CEM via Snapchat, which he would screen-record and try his best to delete afterwards. He mainly communicated on Snapchat and talked to girls aged between 12 and 17. He would tell girls that he was 16 to 17 years old, a ‘realistic, not real age’; • he has used Discord to share CEM via screen share, and most recently he told a 14-year-old to show their vagina and breasts. He covertly recorded that screen share; and -- 4 of 30 -- [2026] SASCA 36 The Court 3 • he has been too afraid to admit who he is. He has been having plans to commit suicide. He cannot control himself in terms of looking at CEM, which is ‘kind of like a cry for help’. 5 Police reviewed the content of the respondent’s electronic devices, from which they obtained evidence supporting the other charges and the existence of uncharged offending conduct. 6 Between 27 May 2022 and 22 June 2022, the respondent engaged in online interactions with a user AK, who was apparently a 13-year-old girl, on the platforms Swipr and Snapchat. The interactions included the following: • on 28 May 2022, the respondent continued sexual conversations and encouraged AK’s participation after AK said, ‘It kind of doesn’t feel right’; • on 29 May 2022, the respondent engaged in a video call with AK, during which he masturbated. He then requested images from AK, who declined; • between 30 May 2022 and 6 June 2022, the respondent requested further images. AK declined. The respondent called her a ‘brat’ and instructed her to ‘do what daddy says’. He asked her to send ‘nudes on the daily to quench [his] thirst’. AK indicated she did not like sending pictures, and the respondent said, ‘that’s why it’s only to the person who you love right’. He continued to request images or video calls while AK was naked; • on 13 June 2022, the respondent masturbated while the user had her mouth open in a screen share; • on 14 June 2022 and 16 June 2022, AK sent the respondent images of her backside and exposed breast. The respondent then asked for ‘full ass’; • on 18 June 2022, the respondent screen-recorded and saved his interactions with AK. He asked for an ‘ass/leg/back picture’ and for her to show him what turns him on so much. He spoke about ‘dom/sub’ following which AK told him to leave her alone. The respondent said, ‘I only control you till [sic] cum, once you make me cum then I don’t need to control you anymore’. The respondent showed himself masturbating, then AK showed herself masturbating (Counts 21 and 22); • on 20 June 2022, the respondent again screen-recorded his interactions with AK. The recordings show him masturbating and AK masturbating. AK sent images of her vagina, her legs spread apart showing her vagina and backside area, and her pulling apart her anus to expose her anus and vagina. While AK was masturbating on camera, the respondent split his screen to show a search for ‘bestiality’, followed by a video of a woman having sex with a dog and a horse. AK messaged, ‘can we watch the normal ones’ (Counts 23 and 24); -- 5 of 30 -- [2026] SASCA 36 The Court 4 • on 21 June 2022, the respondent shared his screen with AK and displayed videos depicting CEM. The respondent screen-recorded and saved this. AK said, ‘please tell me that is not a kid’. A separate recording showed AK licking her fingers and inserting them into her vagina. She removed her pants and bent over to display her backside, breasts and vagina; and • on 22 June 2022, the respondent saved five videos depicting AK masturbating, including with her vagina visible (Counts 25 and 26); 7 Police also found, on the respondent’s hard drive, CEM that had been played to AK. 8 On 7 June 2022, the respondent communicated via Snapchat with a girl, JK. He received a video file of JK masturbating with digital penetration which he screen-recorded and saved on his mobile phone (Count 10). 9 Between 13 June 2022 and 18 June 2022, the respondent interacted online with a girl, M, on Swipr and Snapchat. He screen-recorded and saved the interactions on his mobile phone. He requested images of M’s vagina, anus and breasts. He continued the requests when she said she was on her period. M sent him images (Count 11). 10 On 15 June 2022, the respondent interacted with another young girl on Swipr and Snapchat. He asked if she ‘wanted to see a nineincher’ and for her to send ‘a little bit of tities.. or ass.. get this nineincher going for you’. The girl sent two images of a child in lacy underwear, and another of a midriff with exposed breasts. The respondent requested images of the child’s ‘perfect pussy’. She declined. The respondent sent her photographs of an exposed penis (Count 9). 11 Police located on the respondent’s devices the following files (Counts 20 and 27): • 68 aggravated video files depicting CEM;1 • 19 video files depicting CEM;2 • 23 aggravated image files depicting CEM;3 and • 7 image files depicting CEM.4 12 The accepted factual basis of the offending incorporated further, uncharged conduct: 1 Ranging from Category 1 to Category 5 on the Oliver scale. 2 Ranging from Category 1 to Category 4 on the Oliver scale. 3 Ranging from Category 1 to Category 4 on the Oliver scale. 4 Comprising Category 1 and Category 2 files on the Oliver scale. -- 6 of 30 -- [2026] SASCA 36 The Court 5 • the respondent engaged in online interactions with another user in May 2022. The respondent requested images of the user’s thigh. The user sent images of clothed thighs. The respondent asked for images of her naked body. They conversed about age and the user noted the respondent had lied about his age; and • on 14 June 2022, the respondent interacted with a user on Snapchat and Swipr. He sent the user images of his exposed penis and three videos of adults engaged in sexual intercourse. The user did not respond. 13 Police were unable to locate any of the children depicted in the CEM or any of the children with whom the respondent communicated over the various platforms. The Director submitted a Community Impact Statement from the Commissioner for Victims’ Rights in accordance with s 15(2)(b) of the Sentencing Act. The relevant sentencing provisions 14 Section 96(3)(ba) of the Sentencing Act prohibited the judge from suspending any term of imprisonment imposed with respect to Counts 7, 9, 10, 11, 21, 22, 23, 24, 25 and 26, as those offences were ‘serious sexual offences’. The exception to this prohibition, by operation of ss 96(9) and 96(10), is if the offence occurred in ‘prescribed circumstances’. 15 Similarly, s 71(2)(b)(ii)(A) of the Sentencing Act prohibited the judge from ordering that any term of imprisonment imposed with respect to those same counts be served on home detention unless, again, the offence occurred in ‘prescribed circumstances’. 16 For the purposes of both prohibitions, an offence occurs in ‘prescribed circumstances’ if:5 (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 a home detention order be made; and (c) the defendant was not, at the time of the offence, a person in a position of authority in relation to the victim. 17 Further, the respondent was a ‘serious repeat offender’ within the meaning of s 53 of the Sentencing Act, by reason of committing at least three serious offences on separate occasions and, additionally, at least two serious sexual offences on separate occasions. Section 54 of the Sentencing Act provides: 54—Sentencing of serious repeat offenders 5 Sentencing Act, ss 96(10) and 71(6) respectively. -- 7 of 30 -- [2026] SASCA 36 The Court 6 (1) The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender): (a) the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence; (b) any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence. (2) However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that— (a) the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and (b) it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender. 18 Notwithstanding the application of this regime in respect of ‘serious offences’, ‘serious sexual offences’ and ‘serious repeat offenders’, the Sentencing Act also makes general provision for the discharge of defendants on entering into a good behaviour bond. Section 97(1) provides: 97—Discharge of other defendants on entering into good behaviour bond (1) If a court finds a person guilty of an offence, the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction, and without imposing any other penalty, on condition that the defendant enter into a bond— (a) to be of good behaviour; and (b) to comply with the other conditions (if any) included in the bond; and (c) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond. 19 The only qualification for proceeding under this section is where the court ‘thinks that good reason exists for doing so’. That is to say, the sentencing facility of discharging a defendant on condition they enter into a bond is not removed by reason of the offences being serious offences or serious sexual offences as defined, or the defendant being a serious repeat offender. The bond 20 The conditions of the bond the respondent entered into must be read against the background of guardianship and administration orders that the South Australian Civil and Administrative Tribunal had previously imposed. On 24 February 2023, the Tribunal appointed the Public Advocate as limited guardian -- 8 of 30 -- [2026] SASCA 36 The Court 7 of the respondent. The order included a special powers order pursuant to s 32 of the Guardianship and Administration Act 1993 (SA), authorising the detention of the respondent at the place the guardian decided he was to reside. The Tribunal confirmed that appointment on 9 July 2024. On 26 May 2025, the Tribunal found that the respondent had a mental incapacity and appointed the Public Trustee as full administrator of the estate of the respondent. 21 The conditions of the bond the respondent subsequently entered into on sentencing included the following: Residence (place of living) … 8 I must live at [address] and I must not leave without my carers, while on this Bond. I must not leave at any time except for: a. necessary medical or dental treatment; b. avoiding or reducing a serious risk of death or injury (whether to me or some other person); c. going to remunerated (paid) employment at such times and places as approved from time to time by my Supervising Officer; d. going to a place to under[g]o assessment or treatment (or both) relating to my mental or physical condition as approved or directed by my Supervising Officer; e. going to an intervention program as approved or directed by my Supervising Officer. f. going to any other course of education, training or instruction, or other activity as approved or directed by my Supervising Officer; g. any other reason approved or directed by my Supervising Officer. 9 I must be under electronic monitoring when I am released from Court: a. I agree to be fitted with a device of a kind approved by the Chief Executive of the Department for Correctional Services for the purpose of monitoring compliance with the previous conditions and to comply with all reasonable directions of the Chief Executive in relation to this device. b. I must wear the electronic transmitter and obey the Department of Correctional Services [rules] of electronic monitoring, including charging the transmitter daily, for the term of this Bond. c. I must always be contactable by mobile telephone, that does not provide access to the internet. I must give my details to my Supervising Officer so they can use it to get in touch with me at all times while I am electronically monitored. d. I must not do any water related sport or activity at any time unless this has been approved beforehand by my Supervising Officer. e. I must come to an entrance to the required address at the request of my Supervising Officer. I understand that I can only be away from the house for reasons that are allowed in this Bond. f. I must answer any calls or text messages from my Supervising Officer straight away on the mobile phone number I have given. g. I must comply with any direction given by my Supervising Officer or, if my Supervising Officer is a Treatment Intervention Court case manager, also with any direction given by a community corrections officer. Programs 10 I must go to an assessment and, if assessed as suitable, go to and complete any: psychiatric, psychological or medical assessment in conjunction with treating medical experts, treatment, counselling, or therapy programs, including sexual behaviour treatment and for drug abuse; b. educational, vocational or -- 9 of 30 -- [2026] SASCA 36 The Court 8 recreational programs; c. intervention program; d. programs and projects, that my Supervising Officer reasonably directs. … Other conditions … 17 I am only permitted to possess a mobile phone not capable of accessing the internet. Such phone is to remain in the possession of those responsible for my care and I shall not access it save and except for the use for the purposes of home detention monitoring and supervision, or to communicate with members of my immediate family. 18 I shall not have any electronic devices capable of accessing the internet, not approved by my Corrections Supervisor. 22 It is apparent that the conditions of the bond are highly restrictive, analogous in many respects to a home detention order. Moreover, the bond incorporates some obligations by reference to the respondent’s carers. The respondent remains detained at his residential address pursuant to the guardianship order. The sentencing process 23 The respondent spent 21 days in custody between 28 June 2022 and 19 July 2022. His Committal Appearance Date is recorded on the Magistrates Court file as being 7 March 2023. The respondent pleaded guilty, through his counsel, in the Magistrates Court to the 12 child sexual offences on 19 July 2023. The Magistrate remanded the respondent for Guilty Plea Arraignment in the District Court on 29 September 2023. 24 The effect of the timing of the guilty pleas in the Magistrates Court meant that pursuant to s 40(3)(c) of the Sentencing Act, the respondent would be entitled to a reduction of up to 10 per cent of the sentence the Court would otherwise impose in respect of the 12 child sexual offences, unless any of the exceptions in s 40(4) applied. 25 Counsel for the respondent on the appeal, who was counsel at sentencing, explained that the initial delay was occasioned by his and his instructor’s efforts to obtain reports directed at determining whether the respondent was fit to plead to the charges. They obtained a report of Dr Paul Furst, a forensic psychiatrist, dated 26 February 2023. That report is directed expressly to the questions of the respondent’s fitness to stand trial and mental competence to commit the offences. They then obtained a second opinion from forensic psychiatrist Dr Jacqueline Condon, dated 26 June 2023, which was expressly directed to the same ends. It will be necessary to discuss these reports further, but both expressed the opinions that the respondent was mentally fit to plead to the charges, and that there was no basis on which to assert mental incompetence to commit the offences. -- 10 of 30 -- [2026] SASCA 36 The Court 9 26 These reports, being directed to the questions of mental incompetence and fitness to plead, were not obtained on oath. The respondent’s legal representatives subsequently obtained a report by Dr Loraine Lim, a forensic psychologist, for sentencing purposes, which was supported by an affidavit. Dr Lim was provided with the reports of Dr Furst and Dr Condon, as well as other materials. Her report is dated 18 September 2024. 27 Following the pleas of guilty in the District Court on 29 September 2023, the sentencing judge remanded the respondent for mention on 18 October 2023. The respondent was on bail. On 18 October 2023, the allocutus was read. On that occasion, counsel explained that while the question of fitness to plead had been resolved, the respondent’s ongoing treatment had been disrupted. He requested an adjournment for six months to allow the respondent to be assessed by Dr Lim and for the respondent’s ongoing therapeutic treatment to continue with a clinical psychologist, Mr Rhys Scott. 28 Counsel for the Director did not oppose the application but suggested that the parties ‘touch base’ at the mid-point, to see how the treatment was progressing. The judge listed the matter for mention on 8 April 2024. 29 On 8 April 2024, defence counsel reported that the respondent had been unwell which necessitated the cancellation of the original appointment with Dr Lim. However, he had seen Dr Lim just the previous Friday. Dr Lim required a follow-up appointment with the respondent’s family. Defence counsel explained that there had also been a break in counselling, but that the respondent had resumed counselling with Mr Scott on a fortnightly basis. 30 The judge listed the matter for 11 July 2024 for sentencing submissions, requiring all material to be relied on by the parties to be filed a week earlier. He ordered a comprehensive home detention suitability report. 31 The matter did not come on for sentencing submissions until 4 October 2024. This appears to have been on account of Dr Lim’s report not being available until September. The prosecutor made submissions, which included reading part of the Community Impact Statement from the Commissioner for Victims’ Rights. Defence counsel commenced submissions, during the course of which he relied on evidence on oath, for the purposes of s 54 of the Sentencing Act, from Dr Lim and Mr Scott, as well as the respondent and the respondent’s mother. In the course of submissions with respect to the respondent’s personal circumstances, the judge raised whether he should be provided with the reports of Dr Furst and Dr Condon, these being referred to in the report of Dr Lim. In any event, it transpired that more time was required to complete submissions. The judge adjourned submissions to 20 November 2024. 32 Defence counsel continued submissions on 20 November 2024. On that occasion, he indicated that he did not rely on the reports of Dr Furst and Dr Condon ‘as such for the purposes of sentencing directly’, explaining their relevance to the -- 11 of 30 -- [2026] SASCA 36 The Court 10 question of fitness to plead. Submissions proceeded, and the matter was adjourned to 13 February 2025 for sentence. 33 Sentencing did not proceed on that date. The matter resumed on 12 June 2025, prior to which the parties provided further materials to the judge, including progress reports dated 7 February 2025 and 27 March 2025. On 22 May 2025, this Court delivered judgment in Cappo v The King.6 That case concerned, in part, the approach to whether an offence occurred in ‘prescribed circumstances’ for the purposes of determining the availability of home detention (CLCA, s 71(6)(b)) or suspension of a sentence of imprisonment (CLCA, s 96(10)(b)) in the case of serious sexual offences. 34 At the 12 June 2025 hearing, the prosecution alleged that the respondent had, on his own admission, been using cannabis contrary to his bail agreement. It also raised a concern that the respondent was continuing to access the Internet, via an Internet-connected television, and alleged that the respondent had been accessing CEM. The prosecution applied for the revocation of the respondent’s bail on the basis of that asserted non-compliance. 35 The judge declined to revoke bail, indicating he had not yet determined whether to impose a custodial sentence. Defence counsel outlined steps that had been taken by the respondent’s care provider to remove the respondent’s capacity to access the Internet. It became apparent that further information was required. 36 On this occasion, the judge modified the bail agreement to require compliance with drug testing and prohibiting the use of illicit drugs or alcohol and to prohibit the use of the Internet. He requested a progress report detailing the respondent’s compliance with bail conditions from the date of the previous report up to and including the week ending 15 August 2025. He adjourned the matter to 26 August 2025. 37 On 26 August 2025, defence counsel submitted that on the basis of the affidavit material now filed, the issues with respect to cannabis and access to the Internet were ‘resolved’ and the Court did not need to get to the bottom of what actually happened. He submitted that the respondent now had no access to the Internet, and his ability to access cannabis had been cut off. The chief reason for this appears to have been the renewal of the guardianship order, but also the Tribunal’s making of an administration order, such that the respondent’s finances were now externally managed. 38 Defence counsel made further submissions in support of a home detention order, which the prosecution opposed. The prosecutor referred to a positive test for cannabis on 19 June 2025, only shortly after the judge had varied the bail agreement to prohibit the use of illicit drugs. She conceded that this may have been residual cannabis remaining in the respondent’s system. There was a negative test 6 [2025] SASCA 55. -- 12 of 30 -- [2026] SASCA 36 The Court 11 on 17 July 2025 and then a positive test on 31 July 2025. The respondent admitted to meeting someone outside his house on 6 August 2025, but there was no subsequent drug test prior to the hearing. 39 The prosecutor then noted that the respondent had ‘effectively been on an informal Griffiths7 remand’ since the allocutus was read on 18 December 2023. She submitted that the fact the respondent had been unable to comply with his home detention conditions, notwithstanding the supports that had been provided, should cause significant concern. 40 The judge indicated that he was in a trial and would not be in a position to sentence for some time. He listed the matter for sentencing on 23 October 2025. He requested a further compliance report for the period up to 13 October 2025, to contain the results of at least three drug tests. 41 When the matter resumed on 23 October 2025, defence counsel immediately acknowledged that the further report that had been received was ‘a very poor report’. It appears that attempts to prevent the respondent from accessing cannabis had continued to be unsuccessful, and that notwithstanding a lack of access to the Internet, the respondent was still ‘having problematic engagement with computers’. This appears to have been a reference to the respondent having access to a non-Internet-connected chatbot. Counsel suggested a condition of home detention be that the respondent only have access to a dumb phone which should remain in the possession of those charged with his supervision and care. 42 Lengthy submissions followed. These included observations by the judge about the apparent inability of the respondent’s carers to ensure that he did not have access to the Internet or a phone line for ordering cannabis. Following an adjournment, the respondent’s counsel proposed that the judge immediately place the respondent on conditions of home detention. 43 The prosecutor renewed her application to revoke bail. She reiterated that since December 2023, the respondent’s compliance with his bail agreement had become worse. She expressed significant concerns about the respondent’s ability to comply with any orders. The judge declined to revoke bail and ordered a home detention suitability report. The judge then requested counsel to engage about precise terms of additional restrictions to be imposed. 44 The matter was adjourned to 18 December 2025. On that occasion, the respondent pleaded guilty to the two counts of fail to comply with bail agreement, both of which concerned his earlier positive drug tests while on bail. He then proceeded to sentence the respondent as indicated earlier. In doing so, he drew heavily on the reports of Dr Furst, Dr Condon and Dr Lim when considering the respondent’s personal circumstances. 7 Griffiths v The Queen (1977) 137 CLR 293. -- 13 of 30 -- [2026] SASCA 36 The Court 12 45 The history of the matter indicates that the respondent’s personal circumstances were complex. We now turn to those circumstances. The respondent’s personal circumstances 46 The respondent was 20 years old when he committed the last of the counts. He was 24 when sentenced. Following his arrest, he spent three weeks in custody. Issues arose with respect to his inability to communicate with other prisoners and staff. This led to him engaging in self-harming behaviour. 47 The respondent was born in Adelaide. His parents divorced when he was in primary school. He has two biological sisters and two half-siblings from his mother’s previous relationship. His relationships with his siblings were distant, on account of a combination of his behavioural problems and mental health issues. He considered that his parents’ relationship improved after their separation. Since then, they had both been providing him with support to the best of their ability. 48 The respondent lived with his father until late 2021 or early 2022. It appears that the relationship broke down at that stage on account of the respondent’s challenging behaviours, which included threatened verbal and physical abuse. The respondent was transitioned into independent living and supported to move into a 24/7 NDIS funded residential property, originally in Balhannah and then in Payneham. He was provided with a 2:1 psychosocial support model of care, which usually involved two carers looking after him during the day and one overnight. 49 The respondent’s school years were challenging. He had a poor capacity to self-regulate his behaviour and emotional states and struggled to form peer relationships. He was diagnosed with Autism Spectrum Disorder (ASD) in Year 6. In high school, he continued to have anger outbursts and emotional meltdowns, with concomitant labile moods if he felt his needs were not being met. He was expelled in Year 9. He was often bullied. He displayed oppositional and anti-authoritarian conduct towards his teachers. He had learning difficulties, characterised by dyslexia and poor focus. 50 Following his expulsion, the respondent was enrolled in a special needs program for young people suffering from disabilities and with significant learning needs. It was here that he was introduced to cannabis, when he was about 18. His attendance was poor, but he remained enrolled until face-to-face lessons were halted in response to the COVID-19 pandemic in 2020. 51 The respondent started smoking cannabis daily when he discovered that it helped him slow down his thoughts. He felt that it helped him focus on his ‘gifted abilities’ such as playing video games. He estimated that between the ages of 18 and 22, he was smoking $25-$30 worth of cannabis daily. He reported to his treating psychologist, Mr Scott, that he used cannabis to manage boredom and low mood. He said that his NDIS funded carers had driven him to a dealer’s house to obtain cannabis, as he became highly oppositional and aggressive when he was denied access. His treating psychologist reported that the respondent’s mental state -- 14 of 30 -- [2026] SASCA 36 The Court 13 was highly affected by his cannabis use. The respondent’s parents were gradually able to enforce changes in his consumption, and in his carer’s behaviour, so as to bring about a cessation of cannabis use. This had a consequent improvement in the respondent’s engagement in treatment sessions, improved mood and cognition, increased insight and a reduction in his delusional beliefs. 52 It is apparent, however, that the respondent continued to use cannabis to some extent, as became apparent from the results of the tests conducted while the respondent was on bail prior to sentencing. 53 Dr Lim noted that the respondent had an established history of depression and anxiety with associated self-harming attempts and suicidal ideation. He had difficulties with emotional regulation, often accompanied by physical aggression and other reckless and impulsive behaviours, such as running away from home. His diagnosis of ASD was well-documented. Dr Lim considered his ASD was at Level 2 severity, that is, of moderate range, due to his poor adaptive coping skills. His ASD was not accompanied by a formal intellectual disability and Dr Lim considered him to be of normal intelligence. 54 The respondent was assessed with respect to his adaptive functioning. This refers to skills that all individuals require to navigate the demands of human environments, such as different forms of interpersonal relationships, verbal and non-verbal communication and comprehension. It includes critical daily living skills. In this assessment, the respondent obtained an overall disability score within the severe range. This included scores in the severe range for the domains of ‘Understanding and Communication’ and ‘Self-care’, and in the extreme range for the domains of ‘Life Activities (Household)’, ‘Participation in Society’, and ‘Pain’. His score was in the moderate range for ‘Getting along with People’. 55 The respondent’s overall level of adaptive functioning was at or above the level of 0.2 per cent of his peers. 56 Dr Lim noted the records made by the respondent’s treating psychologist during the three-week period the respondent was incarcerated in the Adelaide Remand Centre. The respondent was frightened to ask the guards for medical assistance. He was subjected to violence. He said he was trying not to ‘trigger’ anyone, including the guards. He engaged in self-harm and maintained that if he were to be imprisoned again, he would commit suicide. 57 The respondent reported that he started looking at CEM when he was about 13 years old, after he was sexually abused. He wanted to look at someone his own age. He reported having sexually assaulted other children his own age. Dr Lim considered that the respondent’s experiences of sexual abuse during childhood appeared to have had a significantly deleterious impact on his psychosexual development: It had likely caused him to become normalised to inappropriate sexual conduct at a young age, to experience sexual confusion during the early years of puberty, and over time, to -- 15 of 30 -- [2026] SASCA 36 The Court 14 develop a deep-seated warped understanding of what had constituted appropriate and inappropriate as well as morally repugnant conduct as he entered early adulthood. 58 Dr Lim considered that the respondent met the diagnostic criteria for Paedophilia – Nonexclusive Type – Sexually attracted to female children. She also considered he qualified for the following DSM-5-TR psychological disorders: • Autism Spectrum Disorder; • Borderline Personality Disorder (with some narcissistic traits); and • Cannabis Use Disorder (at the time of reporting, in partial remission). 59 Dr Lim accepted that ‘an argument could be made’ that the respondent had continued to gravitate towards children due to his lower level of emotional maturity, on account of his ASD. She accepted that this was more than likely the case when the respondent was himself a child. However, she qualified this heavily with respect to his adult offending: However, I do not believe that the above explanation provides a sufficient rationalisation for his commission of his current offences, particularly the charges involving his sexualised communications with children on various social media platforms. [The respondent] had clearly taken on a dominant role in those contexts. The evidence does not support the explanation that he was communicating with them at their age level (i.e., as a child to another child), as one might have observed if his offending conduct was being perpetuated by a lower level of emotional/mental maturity that was incommensurate to his chronological age. He was consistently instructional and authoritative in his communications with the female victims. … His offending in this respect was clearly borne out of a desire for sexual gratification. It was neither to fulfil an unmet emotional, social, or an intellectual need, nor in my opinion, was it related to a significant extent to any autistic traits that were underpinned by Theory of Mind Deficits such as poor perspective taking and/or an inability to feel empathy or appreciate that his behaviour was wrong. It was concerning that [the respondent] had described a capacity to “manipulate” children at the current assessment. 60 On the prospects of the respondent’s rehabilitation, Dr Lim emphasised the need for tailored intervention: As a responsivity factor, [the respondent’s] dysfunctional personality traits could lead to a reduction in his prospects for rehabilitation or a premature disengagement from therapy if the offence-related interventions that he is referred to have not been specifically and [sic] tailored to accommodate his complex psychological needs and/or his unique, albeit idiosyncratic communication and interactional style. Fortunately, I do not believe this to be the case with [the respondent] at the current time, although that may change in the future if he is incarcerated and is referred to a generic sex offender therapy program or other rehabilitation programs offered by the Department for Correctional Services (DCS). 61 Dr Lim noted that the respondent had developed a strong therapeutic alliance with Mr Scott, his treating psychologist at the time. It appears that since Dr Lim’s report, Mr Scott has ceased to work in private practice and is no longer treating the respondent. At the time of Dr Lim’s report, however, the respondent was making -- 16 of 30 -- [2026] SASCA 36 The Court 15 progress with Mr Scott’s therapeutic assistance, albeit that Dr Lim considered the therapy to be in its early stages. 62 Dr Lim observed that if the respondent were to be given a custodial sentence, his mental health and currently relatively stable functioning would likely deteriorate. He would be vulnerable to exploitation on account of his poor assertiveness and communication skills. He would likely develop severe mental health issues with concomitant suicidality and aggression, or at the very least display dysregulated or odd behaviours. That would compound the risk of him being targeted by other prisoners. Dr Lim recommended that if he were to be imprisoned, he should be placed in protective custody, notwithstanding that to do so would likely aggravate his mental health. 63 Dr Lim did not consider that the respondent would derive much therapeutic benefit from prison-based sex offender therapy. Rather, he needed targeted, personally relevant psychological therapy. That therapy should be ASD- and trauma-informed. 64 Dr Lim also noted that if the respondent were to be incarcerated, he would likely lose his NDIS funded package for support services and supported accommodation. He would be required to re-apply for funding once released from prison. That process can take considerable time, creating the risk of leaving him unmanaged, unmonitored and unsupported professionally for an extended period after his release. The approach of the sentencing judge 65 The sentencing judge commenced his Sentencing Remarks by commenting on the difficulty of the sentencing exercise in this case. He then said: You have profound difficulties in intellectual functioning, social functioning, and associated significant mental health issues. 66 The judge later went into the respondent’s difficulties in some detail. This introductory reference to profound difficulties in intellectual functioning, without explanation, obscured the fact that the respondent was assessed as having normal intelligence and was not subject to any intellectual disability. The respondent’s difficulties arose from his moderate level of ASD, his extremely low level of adaptive functioning and the diagnosed mental health disorders catalogued earlier. 67 The judge illustrated the extent of the respondent’s difficulties by reference to the NDIS care plan, discussed earlier. He then turned to the circumstances of the offending. He expressed the view that the offending did not occur in ‘prescribed circumstances’ within the meaning of ss 96(9) and 96(10) of the Sentencing Act, such as would permit suspension of a sentence of imprisonment, as discussed earlier. The judge then observed in this regard: The strict constraint on sentence, in some ways highlights the issue that may arise when legislation is designed to address a particular evil, but does not encompass, necessarily, the -- 17 of 30 -- [2026] SASCA 36 The Court 16 extremely wide range of circumstances in which an offence may be committed, or in which an offender falls for consideration. 68 The judge then gave a summary account of the offending, indicating that he ‘[bore] in mind the detailed description’ of the respondent’s conversations with AK. He did not reproduce any of that detail. He indicated that he had had regard to the detailed Community Impact Statement from the Commissioner for Victims’ Rights, indicating that he bore ‘strongly in mind’ the effect of offending on children in the position of the victims of the instant offending. 69 The judge then engaged in an extensive review of the respondent’s personal circumstances. He considered first the report of Dr Furst. He referred, by reference to this report, to the various presentations of the respondent at the emergency departments of public hospitals over the years in circumstances of distress and the respondent’s incidents of self-harm and hallucinations. He noted Dr Furst’s opinions, which were consistent with those of Dr Lim set out earlier. He said: Dr Furst considered that you were capable of completing the Owenia House program to reduce your risk of re-offending, but would be unlikely to be deemed suitable for the custodial program offered by the Department for Correctional Services, and that even if deemed suitable, you were unlikely to complete that program, and would end up serving past your non-parole period, perhaps even your whole sentence without receiving rehabilitation or reducing your risk of reoffending. I bear in mind the recommendations of Dr Furst within the legislative context to which I have already referred. 70 The judge then noted Dr Condon’s report which concluded, consistently with the opinion of Dr Furst, that the defence of mental incompetence was not available to the respondent. 71 The judge then turned to the report of Dr Lim, focusing on Dr Lim’s account of the respondent’s history, diagnosis, treatment and presentation. He indicated that he had regard to the reports of the respondent’s treating psychologist, Mr Scott, and reports from the respondent’s care provider at AEON Disability Support Services. This was to the effect that the respondent now did not have access to any Internet device or access to cash or debit cards, following the respondent’s continued purchasing of cannabis while on bail. 72 The judge noted that the respondent’s psychological support would continue with a colleague of Mr Scott. He accepted that the respondent’s compliance with home detention bail requirements had been problematic. Ultimately, he accepted that a positive result for THC on 6 November 2025 was a residual result from earlier cannabis consumption and was consistent with a significant decline in the reading levels. As to the compliance report more broadly, the judge said: The authors of the report … concluded that your current home detention bail conditions appeared to be appropriate in mitigating your risk level. Since the bail order had been varied to include home detention there had been less reported incidents with behavioural issues, and cannabis use had reduced. You had still voiced an intention to continue smoking cannabis once you are not limited by your conditions, but I make it clear that the conditions will continue. -- 18 of 30 -- [2026] SASCA 36 The Court 17 The author said that you required ongoing psychological counselling and specific intervention to address problematic sexual desires. Options needed to be explored to find another psychologist specialising in the area so long as you are not eligible to undertake targeted programs. 73 The judge then concluded as follows: The complexity of this matter is illustrated by the matters to which I have referred and all of the materials with which I have been provided and to which I have given consideration. I have already commented on the seriousness of the offending and the impact of that offending. Sometimes the protection of the community is best served by the successful rehabilitation of an offender. I consider that ultimately, having regard to the issues I have described, that the only appropriate course is to record convictions in respect of all of the offences and to place you on a bond to come up for sentence, that is, I defer sentencing on condition that you enter into a bond in the sum of $1,000 to be of good behaviour for three years. During the course of that bond you are to be under the supervision of a community corrections officer. You are to be subject to electronic monitoring with all of the usual conditions attached to electronic monitoring, including a prohibition on the consumption of alcohol and of any drug other [than] as prescribed by a legally qualified medical practitioner. You are to continue to reside in the supported accommodation and under the care provided under the NDIS allocation. You will be subject to the orders made in the South Australia Civil and Administrative Tribunal, which operate under the Guardianship Act. The appeal 74 The Director’s complaint on appeal was straightforward. It was that having regard to the nature and seriousness of the offending, it was not open simply to impose a bond, albeit one with conditions as restrictive as those which were imposed. The Director referred to this Court’s recent statement in Brooker v The King with respect to sentencing for offending of this nature:8 In cases such as these, as in R v D, it is necessary for sentences involving child sexual offending to reflect the “feeling of outrage and revulsion in the community”,9 to ensure that the court does what it can to address the likelihood of serious harm to victims and the insidious effect of this kind of offending on their families and the community more generally. It has repeatedly been observed that there is a risk of lifelong harm to many victims. As was recognised in R v D, and since by the courts and by Royal Commissions and other inquiries, the community now recognises that there are a number of means by which vulnerable children can and should be protected from the risk and harm of predatory sexual abuse. Though the criminal law should be seen as one of a number of available responses, it is often given prominence. It is necessary for sentencing courts to make it clear that the community does not tolerate the sexual abuse of children, whether in person or over the internet, including by the pernicious production, possession and dissemination of child exploitation material. Appeal courts must likewise do what they can to protect children and the community, by ensuring that sentences deter, denounce and punish offenders and, by their reasons, give due recognition to the interests of victims and their families. This must be done recognising that 8 Brooker v The King [2024] SASCA 135 at [87]-[88] (Livesey P, David JA and Bond AJA). 9 R v D (1997) 69 SASR 413, 423 (Doyle CJ). -- 19 of 30 -- [2026] SASCA 36 The Court 18 the prevailing standards of punishment reflect a hardening in community attitudes and increased maximum penalties for offending of this kind.10 (Footnotes in original.) 75 In Ackland v The King,11 this Court referred to this passage when emphasising the need for deterrence in connection with offending against children that involved the use of the Internet.12 In R v Urch, the Court said:13 Unfortunately, the possession and production of child exploitation material remains prevalent in our community, and this offending creates a market for the abuse and degradation of children, who are vulnerable members of our community. The courts must impose sentences which act as a deterrent to other like-minded offenders from engaging in this type of unlawful conduct for the protection of children from the harmful consequences of similar offending. 76 The Director’s complaint is one of outcome error. It does not complain of any process error that might be discernible from the sentencing judge’s remarks. Notwithstanding that limit to the complaint, and accepting that Sentencing Remarks are not to be read in the same way as reasons for judgment, it is necessary to comment briefly on the Sentencing Remarks. The passages extracted earlier indicate that the judge considered that the imposition of a bond, in the terms made, provided the best path for rehabilitation of the respondent and that rehabilitation, so structured, provided the best course for meeting the primary purpose of sentencing, being the protection of the safety of the community.14 77 The judge did not appear to refer, however, to the secondary purposes, listed in s 4 of the Sentencing Act, of punishment, holding the defendant accountable, public denunciation, publicly recognising the harm done, or personal and general deterrence. We accept that the judge referred to the Community Impact Statement, and bore those matters ‘strongly in mind’, but he did not then relate that to the prescribed sentencing considerations. 78 While there is no complaint of process error, the Director observed, with some justification, that the majority of the Sentencing Remarks was devoted to the respondent’s personal circumstances. These certainly required careful and detailed consideration. However, the judge’s recounting of the offending itself was, by comparison, summarily descriptive. That does not mean that he did not take into account the full seriousness of the offending. However, the effect on reading the remarks as a whole is that the seriousness of the offending is diminished and overwhelmed by the consideration of the respondent’s personal circumstances. We 10 R v Brandon [2024] SASCA 9, [30] (Livesey P, Doyle and David JJA); R v Bradley [2024] SASCA 56, [61] (Lovell, Bleby and David JJA). 11 [2025] SASCA 15. 12 Ackland v The King [2025] SASCA 15 at [43] (Livesey ACJ, S Doyle and Bleby JJA). 13 R v Urch [2024] SASCA 28 at [34] (Livesey P, S Doyle and David JJA). 14 Sentencing Act, s 3. -- 20 of 30 -- [2026] SASCA 36 The Court 19 have earlier set out the circumstances of the offending in considerably greater detail in order to ensure that its seriousness is given the necessary prominence. 79 In addressing the expert psychological reports, the judge also did not address the matters in those reports that touched on the seriousness of the offending. He did not address Dr Lim’s observations, set out earlier but repeated here, that the respondent: … was consistently instructional and authoritative in his communications with the female victims. … His offending in this respect was clearly borne out of a desire for sexual gratification. It was neither to fulfil an unmet emotional, social, or an intellectual need, nor in my opinion, was it related to a significant extent to any autistic traits that were underpinned by Theory of Mind Deficits such as poor perspective taking and/or an inability to feel empathy or appreciate that his behaviour was wrong. It was concerning that [the respondent] had described a capacity to “manipulate” children at the current assessment. 80 It is necessary to give full attention to the seriousness of the offending and the authoritative and manipulative approach that the respondent took to his victims when considering whether the imposition of a bond, with the conditions as imposed, was manifestly inadequate. It is these matters, in particular, that give content to the secondary sentencing purposes in the particular case. In this case, they spoke heavily against anything other than a custodial sentence. 81 The respondent emphasised all the complexity of his circumstances in opposition to the Director’s application. Quite appropriately, he emphasised his severe deficit in adaptive functioning, in circumstances where he was abused at age 12. That led to him exploring CEM in relation to children his own age. That was then overlaid by his ASD, being bullied at school and the breakdown in the relationship of his parents. He ended up spending most of his time in his bedroom, online, disconnected from engagement with the world. 82 This was then followed by the mental health episodes described earlier, characterised by attempts at self-harm and, ultimately, the offending. When he was incarcerated after his arrest he was assaulted and self-harmed. 83 Counsel for the respondent described events following the respondent’s release from custody as a significant turning point. He was placed in 24-hour supported accommodation with AEON Services, with high levels of support as already described. He became subject to guardianship with special powers and an administration order. He has engaged in, and made progress on account of, a therapeutic relationship with Mr Scott. On Mr Scott’s departure from private practice, it appears, however, that the respondent will not be able to commence a new therapeutic relationship until the end of the year. 84 There is, therefore, some uncertainty surrounding the respondent’s therapeutic progress in the near term. Nevertheless, as the respondent submitted, imprisonment would create a break in the accommodation and support relationships, and there is no realistic prospect he would be able to receive -- 21 of 30 -- [2026] SASCA 36 The Court 20 appropriate treatment while in custody. Given that any period of imprisonment would likely be for a considerable period of time, the situation would, in counsel’s words, be ‘disastrous’ for his rehabilitation. That is in addition to the fact that the respondent would undoubtedly face an extremely high degree of hardship while in custody, as illustrated by his previous, short term of incarceration. 85 We do not accept entirely the respondent’s submission that his release from custody constituted a significant turning point. Dr Lim reported in September 2024, that is, long after that period of incarceration and following a long period of therapeutic engagement with Mr Scott: There appears to have been a shift in [the respondent’s] attitude in respect to his previously risky online behaviours and his level of victim empathy. Nevertheless, I am of the opinion that such therapy is still in the early stages. Due to his autism, which is a permanent disability, and his co-morbid personality disorder, [the respondent] is likely to require constant supervision, monitoring, and professional assistance for the remainder of his lifetime to support him to manage his deviant sexual urges, to minimise his risk of engaging in future online-based sexual offending towards children, and to halt any potential for his paraphilic proclivities to progress into contact-based offending. At present, I do not believe that he has achieved a sufficiently high enough level of self-efficacy (emotionally and behaviourally) to be able to manage his sexual urges independently, which would be why it is imperative that he continue to engage in treatment on an ongoing basis. 86 More fundamentally, the respondent emphasised the relevance of his childhood circumstances and mental health complexities to the sentencing function. To this end, in R v Guode,15 the High Court endorsed the statement of principle by the Victorian Court of Appeal in R v Verdins,16 as follows:17 “1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. 15 (2020) 267 CLR 141. 16 (2007) 16 VR 269 at [32] (Maxwell P, Buchanan and Vincent JJA). 17 R v Guode (2020) 267 CLR 141 at [8] (Kiefel CJ, Gageler and Nettle JJ). See also R v Perry [2022] SASCA 127 at [62] (Kourakis CJ), [122]-[123] (Livesey P and David JA). -- 22 of 30 -- [2026] SASCA 36 The Court 21 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.” (Footnote omitted.) 87 In the present case, having regard in particular to the expert report of Dr Lim, there is little to suggest that the respondent’s ASD, lack of adaptive functioning or other mental health conditions could be said to have significantly reduced his moral culpability. Neither is there any strong basis for thinking that these conditions should reduce the weight to be accorded to specific or general deterrence, or to the importance of denunciation as a sentencing objective. 88 On the other hand, the respondent’s mental health conditions will have a significant effect on the impact that any custodial sentence would have on the respondent. There is also clearly a serious risk of imprisonment having a significant adverse effect on the respondent’s mental health. The respondent’s mental health conditions are manifestly relevant to the nature and duration of any sentence that should be imposed. 89 As the sentencing judge observed, the matters relevant to the sentencing function in this case are complex. These complexities relate in large part to the respondent’s ASD, extremely low adaptive functioning and co-morbid personality disorder. They would undoubtedly make any custodial sentence far more oppressive for the respondent than for a member of the population not labouring under these difficulties. It must also be recognised that a sentence of imprisonment would create a significant impairment to the respondent’s rehabilitation. The rehabilitation process will clearly be a lifetime’s work. Nevertheless, while it appears that the respondent has made some progress, Dr Lim was clear that the respondent’s therapy is in its early stages, and that the respondent will require constant supervision, monitoring and professional assistance throughout his whole life. 90 Bringing all these matters to account, and having regard to all the purposes of sentencing, we are unable to conclude other than discharging the respondent on a bond to be of good behaviour, albeit on highly strict conditions, was manifestly inadequate. The respondent’s offending was extremely serious for its kind, involving numerous counts. The respondent’s mental health complexities did not significantly reduce the moral culpability of his offending. The offending was manipulative and designed for the respondent’s sexual gratification. The respondent sought out CEM ‘on kid[s’] versions of dating apps’ and on those platforms, lied to his victims about his age. He would screen-record the material sent to him and save it on his mobile phone. The offending was sustained, involving four children. The long-term adverse effects on the children and their families are likely to be severe and ongoing. -- 23 of 30 -- [2026] SASCA 36 The Court 22 91 The management of health and safety of prisoners is a matter for the Executive.18 There is nonetheless a strong case for the matters relied on by the respondent to be brought to account to ameliorate the severity of any custodial sentence, insofar as may be done under the statutory regime in accordance with principle. However, those matters did not, in all the circumstances, support discharging the respondent on a bond to be of good behaviour for three years. In our view, the course the sentencing judge took was not open. Permission to appeal 92 It is necessary then to determine the Director’s application for permission to appeal. In R v Singh,19 this Court said:20 The principles governing an application for permission to appeal against sentence by the Director are well established. Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’ where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that [it] amounts to an error [of] principle.21 If a sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice, or so low that the magnitude of the disparity itself reveals a misapplication of principle, it may also be appropriate to grant permission to appeal even though no general point of principle will be established by the case.22 (Footnotes in original.) 93 In R v Ametovic, this Court explained the confinement of the power to entertain Crown appeals against sentence to ‘rare and exceptional’ cases:23 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. 18 R v Lian (2023) 144 SASR 303 at [158] (S Doyle JA). 19 [2024] SASCA 81. 20 R v Singh [2024] SASCA 81 at [30]-[31] (Livesey ACJ, S Doyle and David JJA). 21 R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. 22 R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ. 23 R v Ametovic [2024] SASCA 153 at [93] (S Doyle JA, Bleby JA and B Doyle AJA). -- 24 of 30 -- [2026] SASCA 36 The Court 23 94 In our view, it is necessary for the Court to intervene in this case to maintain proper standards for child sexual offending and to retain public confidence in the administration of justice. The Director sought expedition in this matter; the largest contributor to the time between sentencing and the hearing of the appeal was the Christmas break. Double jeopardy considerations require significant weight in the respondent’s circumstances but, in our view, they are outweighed by the need to correct a sentence that has real potential to undermine public confidence in the administration of justice. 95 We grant permission to appeal. We allow the appeal, set aside the judge’s imposition of a bond under s 97 and resentence the respondent. Resentencing: Issues of principle 96 Before turning to the sentence to be imposed in this matter, it is necessary to engage with some issues of principle. Suspension and home detention 97 The respondent submitted that if the Court were to proceed to resentencing, it remained open to the Court to suspend any sentence of imprisonment. The general power to suspend is in s 96(1) of the Sentencing Act. That power is withdrawn where a defendant is being sentenced as an adult for a serious sexual offence.24 ‘Serious sexual offence’ is relevantly defined to include the sexual offences of which the respondent was convicted, ‘other than an offence that occurred in prescribed circumstances’.25 98 ‘Prescribed circumstances’ are defined in s 96(10): (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. 99 The respondent met the conditions in paragraphs (a) and (c). He submitted that he also met the condition in paragraph (b). This Court has recently revisited the proper construction of s 96 in R v Halliwell (‘Halliwell’).26 We do not repeat that analysis here. For the purposes described in Halliwell as the ‘gateway’ analysis in s 96(10),27 the circumstances of the offending are not such that it is 24 Sentencing Act, s 96(3)(ba). 25 Sentencing Act, s 96(9). 26 [2026] SASCA 33. 27 R v Halliwell [2026] SASCA 33 at [80] (Bleby JA, S Doyle JA agreeing). -- 25 of 30 -- [2026] SASCA 36 The Court 24 appropriate to suspend a sentence of imprisonment. As we have already observed, the offending was manipulative. The victims appeared to be aged 12-14. The respondent was 20. The offending was not related to the respondent’s autistic traits. It was done for sexual gratification and not to fulfil an unmet emotional, social or intellectual need. 100 For the same reason, and by reference to the comparable provisions relating to home detention,28 it is not open to order that a sentence be served on home detention. Serious repeat offender 101 The respondent is, by operation of s 53 of the Sentencing Act, a ‘serious repeat offender’. We have set out s 54 earlier. The effect of that section is that any non-parole period must be at least four-fifths of the head sentence, unless subsection (2) is satisfied. 102 We have set out the respondent’s personal circumstances earlier, at length. It is quite clear that in all those circumstances, the protection of the community will be best served by a sentence that has the capacity to maximise the respondent’s rehabilitation. That requires a process that will be ongoing and, above all, closely supervised. The respondent’s complex circumstances will, as we have noted, make prison unusually onerous. He will almost certainly have to spend the duration in protective custody, which will itself have extremely negative consequences for his mental health. His risks of self-harm and attempting suicide on incarceration are demonstrably high. Those consequences are well beyond what would be expected with respect to someone without the respondent’s extremely low adaptive functioning, which sits at the level of 0.2 per cent of the population. He is not amenable to prison-based sexual offender treatment therapy. He will be deprived of the opportunity for rehabilitative progress that is available to other prisoners. The potential to engage in therapeutic treatment while on parole-based supervision may progress his rehabilitation, and consequently the protection of the safety of the community, in a fashion that will not be available to him (as opposed to others) in prison. 103 The respondent is a serious repeat offender within the meaning of ss 53 and 54 of the Sentencing Act. However, his personal circumstances are complex in the extreme. We are satisfied, on the basis of the evidence of Dr Lim, which was made the subject of her affidavit, that the respondent’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence. We are also satisfied, taking into account all the circumstances as we have recounted them, that it is not appropriate that the respondent be sentenced as a serious repeat offender. 28 Sentencing Act, s 71. -- 26 of 30 -- [2026] SASCA 36 The Court 25 Guilty pleas 104 The respondent submitted that he was entitled to a greater reduction as a result of his guilty pleas than the 10 per cent the prosecution submitted was available on account of the timing of his pleas after the Committal Appearance Date.29 In this regard, he relied on s 40(4) of the Sentencing Act: (4) If— (a) a maximum reduction available under subsection (3) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and (b) the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because— (i) the court did not sit during that period; or (ii) the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or (iii) the court did not list the defendant's matter for hearing during that period; or (iv) the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period; or (v) after the making of the charge determination (within the meaning of section 106 of the Criminal Procedure Act 1921)—the prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period, the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period. 105 The respondent relied specifically on s 40(4)(b)(iv). His counsel explained (and so much is supported by the record) that the respondent’s legal representatives held real concerns as to the respondent’s fitness to plead. They obtained the report of Dr Furst and then the report of Dr Condon. Once they had the second opinion of Dr Condon, they were satisfied that the respondent was fit to plead. The respondent then entered guilty pleas within four weeks of receipt of Dr Condon’s report. 106 We doubt that Parliament contemplated this kind of scenario when enacting the subsection. That is not the test for application of the section, however. The question is simply whether the Court was unable to hear the matter during the period, for a reason outside of the control of the defendant. Whether that is the case will depend on all the facts. In the present case, as a matter of fact, the Court was unable to hear the matter because the respondent’s legal representatives were not satisfied as to the respondent’s fitness to plead. That concern must be taken to have 29 Sentencing Act, s 40(3)(c). -- 27 of 30 -- [2026] SASCA 36 The Court 26 been held in the legal representatives’ discharge of their obligations to their client and as officers of the Court. As officers of the Court, they could not discharge their obligations with respect to the respondent pleading until they were satisfied of his fitness. 107 Where circumstances such as these are relied on to meet the terms of s 40(4)(b)(iv), it will be necessary for the Court to be satisfied that the legal representatives held genuine concerns with respect to a defendant’s mental competence to commit the offence and fitness to plead and had acted expeditiously to address that concern. It would be insufficient for a defendant simply to instruct their legal representatives to undertake investigations in that regard. In the present case, there was clearly a basis for the respondent’s legal representatives to hold the concern they did. 108 This was not a matter within the control of the respondent. Further, the Court could not take the pleas until the respondent’s representatives were satisfied of his fitness to do so. Once they were so satisfied, pleas were entered in short order. We are satisfied that the respondent did not plead because the Court was, for a reason outside the respondent’s control, unable to hear the matter. It follows that on resentencing, the Court may reduce the sentence it would otherwise have imposed by up to 25 per cent, pursuant to ss 40(3)(a) and 40(4)(b)(iv) of the Sentencing Act. Resentencing 109 In resentencing, we take into account all the considerations relating to the offending and the respondent’s personal circumstances set out earlier in these reasons. We have had particular regard to the respondent’s youth and the opinion of Dr Lim that the respondent’s experiences of sexual abuse have had a significantly serious effect on his psychosexual development. As indicated earlier, this likely caused him to develop a deep-seated warped understanding of what constituted appropriate, inappropriate and morally repugnant conduct as he entered early adulthood. While the offending involved four different victims, it occurred over a relatively short period. These factors recommend a relatively high degree of concurrency. 110 Pursuant to s 26(2a), we indicate the sentence that we would have imposed for each offence, as follows: On Information filed on 18 July 2023 Count Offence Summary of facts Notional starting point 7 Aggravated disseminating CEM Dissemination of CEM to another user 3 years and 4 months 9 Aggravated communicating to make a child amenable to sexual activity Online communications with another social media user 3 years and 4 months -- 28 of 30 -- [2026] SASCA 36 The Court 27 10 Communicating with the intention of making a child amenable to sexual activity Online communications with JK 2 years and 4 months 11 Aggravated communicating to make a child amenable to sexual activity Online communications with another social media user 3 years and 4 months 20 Possessing CEM Possession of 19 video files and 7 image files depicting CEM 2 years 21 Inciting an indecent act by a child Online communications with AK 3 years 22 Producing CEM Online communications with AK 2 years 23 Procuring a child for sexual activity Online communications with AK 3 years 24 Producing CEM Online communications with AK 2 years 25 Procuring a child for sexual activity Online communications with AK 3 years 26 Producing CEM Online communications with AK 2 years 27 Aggravated possessing of CEM Possession of 68 video files and 23 image files depicting CEM 2 years 6 months On Information filed on 3 November 2025 1 Failing to comply with bail agreement Respondent provided urine sample that tested positive to cannabis. 2 months 2 Failing to comply with bail agreement Respondent provided urine sample that tested positive to cannabis. 2 months 111 We would have reduced each of these head sentences by 25 per cent on account of the respondent’s guilty plea. 112 Pursuant to s 26(1) of the Sentencing Act, and after making allowance for both concurrence and totality, we sentence the respondent to one penalty for all the offences. We fix a starting point of nine years and six months’ imprisonment for all the offending. We reduce that by 25 per cent on account of the guilty pleas, making a head sentence of seven years, one month and 15 days. -- 29 of 30 -- [2026] SASCA 36 The Court 28 113 For the reasons already given, we consider that it is not appropriate that the respondent be sentenced as a serious repeat offender. Further, for the reasons described earlier, this is a case where the respondent’s personal circumstances warrant a relatively low non-parole period, with a view to the respondent spending a considerable period of time on closely supervised parole. We fix a non-parole period of three years. 114 We reduce both the head sentence and the non-parole period by 21 days, to reflect the time spent in custody. That makes a head sentence of seven years and 24 days, with a non-parole period of two years, 11 months and nine days. The sentence is to commence from the date the respondent is taken into custody. Insofar as it is necessary to do so, we confirm the order for forfeiture of the seized electronic devices. -- 30 of 30 --