JV In Person v COMMISSIONER OF POLICE In Person [2026] SASC 39

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SMOLICZ) MCCRM-25-033355; MCCRM-25-022958 Appellant: JV In Person Counsel: MR P CHARMAN - Solicitor: MS S GRIMWADE Respondent: COMMISSIONER OF POLICE In Person Counsel: MS H NIKOLOFF - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/02/2026 File No/s: SCCRM-25-047029 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates 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. JV v POLICE [2026] SASC 39 Judgment of the Honourable Justice Gray (ex tempore) 17 February 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT This is an appeal against sentence imposed in the Magistrates Court following pleas of guilty for 18 offences, comprising one count of breaching s 66L(2) of the Child Sex Offenders Registration Act 2006 (SA) and 17 counts of breaching s 86(4) of the Children and Young Peoples (Safety) Act 2017 (SA) (‘CYPS Act’). The appellant is a registered sex offender on the Australian National Child Offender Register (‘ANCOR’). At the time of the relevant offending the appellant was subject to an extended supervision order (‘ESO’) pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA). On 5 June 2025, police examined the appellant’s mobile telephone and identified contact with a female child, AT. He was arrested that day and his device seized. The contact was not reported as required of him as a serious registerable offender, thereby breaching both his reporting obligations and the conditions of his extended supervision order. The following day, whilst in custody, the appellant was served with a s 86 CYPS Act notice directing him not to contact AT. Notwithstanding that direction, between 13 June and 5 July 2025 the appellant contacted AT on 17 occasions from prison, at times using other prisoners’ telephone accounts to avoid detection. -- 1 of 17 -- On appeal, the appellant advanced three grounds: (1) the learned Magistrate erred in sentencing the appellant on an incorrect factual basis; (2) The learned Magistrate erred in failing to properly assess the need for concurrency between the two sentences imposed; and (3) the overall sentence imposed was manifestly excessive. Held, dismissing the appeal against sentence: (1) The Magistrate did not err in describing the breaches as continuing whilst the appellant was in custody, all 17 breaches having occurred after service of the s 86 notice; nor was there error in referring to the 17-year-old complainant as a victim, given the protective purpose of a written direction under the CYPS Act: [33]–[34], [38]–[40]. (2) The offending did not constitute a single course of conduct. The Magistrate was entitled to consider that the written direction breaches warranted a separate, consecutive penalty in order to adequately address and achieve the objects of the sentencing process, having regard to the nature of the breaches: [44]-[48] (3) The starting points were within range and not manifestly excessive, the conduct in respect of both offences was blatant, and there was no error in the application of totality or concurrency principles: [61]–[62] Child Sex Offenders Registration Act 2006 (SA) s 4A and s 66L(2); Children and Young People (Safety) Act 2017 (SA) s 86 and s 86(4); Criminal Law (High Risk Offenders) Act 2015 (SA); Criminal Procedure Act 1921 (SA) s 5(3); Joint Criminal Rules 2022 (SA) r 191.1; Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 26, referred to. Giordimania v R [2020] SASCFC 28, applied. Attorney-General (SA) v Tichy (1982) 30 SASR 84; Cox v The King [2023] SASCA 43 [2023] SASCA 43; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Mahon v Commissioner of Police (SA) [2024] SASC 147; Police (SA) v Chilton [2014] SASCFC 76; R v Copeland (No. 2) (2010) 108 SASR 398; R v Horstmann [2010] SASC 103; R v Morse (1979) 23 SASR 98; Wittwer v Police [2004] SASC 226, considered. -- 2 of 17 -- JV v POLICE [2026] SASC 39 Criminal: Magistrates Appeal 1 GRAY J (ex tempore): This matter concerns an appeal against sentence imposed in the Magistrates Court on 27 October 2025 in respect of the appellant, JV, in relation to one count of breaching s 66L(2) of the Child Sex Offenders Registration Act 2006 (SA) (‘CSOR Act’) and 17 counts of breaching s 86(4) of the Children and Young Peoples (Safety) Act 2017 (SA) (‘CYPS Act’). 2 The appellant raises three grounds. First, it is contended that the learned Magistrate erred in sentencing the appellant on an incorrect factual basis. Secondly, it is contended that the learned Magistrate erred in failing to properly assess the need for concurrency between the two sentences that he imposed. Thirdly, it is contended that the overall sentence imposed was manifestly excessive. 3 The respondent submits that the learned Magistrate made no factual errors or findings that lead him to mischaracterise any aspect of the appellant’s conduct. Secondly, the respondent submits that the learned Magistrate did not err in declining to make the sentences concurrent, or partially concurrent. The respondent contends that the fact that all of the offending arose from one continuous process of contact with AT did not require concurrent sentences to be imposed.1 The respondent contends that the sentence imposed was not unreasonable or plainly unjust, and was not manifestly excessive. Background and nature of the appeal 4 The appellant was sentenced in the Magistrates Court following pleas of guilty for 18 offences against the CSOR Act and the CYPS Act. 5 The offences included one count of breaching s 66L(2) of the CSOR Act on 3 June 2025, and 17 counts of breaching s 86(4) of the CYPS Act committed on and between 13 June 2025 and 5 July 2025. 6 Section 66L(2) of the CSOR Act provides as follows: … (2) A serious registrable offender who has, or intends to have, reportable contact with a child must, as soon as practicable after the contact, or after forming the intention to have contact, tell an available responsible adult— (a) that he or she is a serious registrable offender under this Act; and 1 Commissioner of Police, ‘Written Submissions of the Respondent’, Submission in [JV] v Police, SCCRM-25-047029, 10 February 2026, [15] (FDN 7) (‘RWS’). -- 3 of 17 -- [2026] SASC 39 Gray J 2 (b) what the offence or offences were that resulted in him or her becoming a serious registrable offender. Maximum penalty: $25 000 or imprisonment for 5 years. … 7 The breaches of this section involve breaches of obligations imposed by reason of the inclusion of the appellant on the Australian National Child Offender Register (‘ANCOR’). I refer to this breach as the ‘ANCOR disclosure breach’. 8 Section 86(4) of the CYPS Act provides as follows: (4) A person who, without reasonable excuse, refuses or fails to comply with a direction under this section is guilty of an offence. Maximum penalty: (a) for a first offence—Imprisonment for 3 years; or (b) for a second or subsequent offence—Imprisonment for 4 years. 9 I refer to the allegations of breaches against this section as the ‘written direction breaches’. 10 Prior to the offending for which the appellant was sentenced on 27 October 2025, the appellant had been sentenced in the District Court on 7 May 2021, for one count of aggravated communicating to procure a child for sexual activity, two counts of aggravated producing child exploitation material and one count of attempting to obtain access to child exploitation material.2 The appellant was sentenced on the basis that he was a serious repeat offender (‘SRO’) as defined in the Sentencing Act 2017 (SA) (‘Sentencing Act’). The appellant was sentenced on that basis, as a result of his guilt on three of the offences, each being a serious sexual offence. The appellant was sentenced to five years, nine months and 19 days imprisonment and a non-parole period of four years, seven months and 22 days was imposed. Both the sentence and the non-parole period commenced on 15 August 2018. 11 At the time of the offending for which the appellant was sentenced by the learned Magistrate, the appellant was subject to an extended supervision order (‘ESO’). The ESO was issued pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’) on 12 March 2025.3 Condition 14 of the ESO prohibited the appellant from contacting, or associating with, any person under the age of 18 years unless supervised by his supervising officer or a person nominated or approved by his supervising officer. Prior to the sentencing hearing, the Parole 2 Commissioner of Police, ‘Affidavit of Gian-Luca Stirling’, Submission in [JV] v Police, SCCRM-25- 047029, 28 January 2026, [13], [30], Exhibit GLS-3 (FDN 4) (‘Affidavit of Gian-Luca Stirling’). 3 Ibid, [15], [30], Exhibit GLS-3. -- 4 of 17 -- [2026] SASC 39 Gray J 3 Board of South Australia had found that the appellant has breached that condition, as well as the condition not to commit any offence.4 12 By reason of the plea to the ANCOR disclosure breach, the appellant admitted to having reportable contact with a child.5 The child in this case was referred to by the learned sentencing Magistrate and will be referred to in these reasons as ‘AT’. A further element of the offence was that the appellant failed to tell an available responsible adult “as soon as practicable after the contact” that he was a serious registrable offender under the CSOR Act and what the offences were that resulted in him becoming a serious registerable offender. The maximum penalty for the ANCOR disclosure breach was a fine of $25,000 or imprisonment for five years.6 13 In relation to the written direction breaches, the appellant admitted that he was a person the Chief Executive of the Department for Child Protection (‘DCP’) had directed, by written notice, not to communicate or attempt to communicate with a specified child, AT, being a child under the guardianship of the Chief Executive during the period specified in the notice. In breach of that written direction, the appellant had on 17 occasions without reasonable excuse refused or failed to comply with that direction. The maximum penalty for each of the written direction breaches, each being a first offence, was imprisonment for three years, making each offence a minor indictable offence. 14 The learned Magistrate sentenced the appellant as follows: a. For the 17 written direction breaches, the learned Magistrate imposed a single penalty with a starting point of 18 months imprisonment reduced to 10 months and 27 days imprisonment to reflect a 40% reduction for the guilty plea. b. For the ANCOR disclosure breach, the learned sentencing Magistrate started with 12 months imprisonment reduced to eight months and 16 days, being a 30% reduction for a guilty plea to be served cumulatively on the sentence imposed for the written directions breach. 15 The overall head sentence imposed was a sentence of one year, seven months and 13 days to commence on 5 June 2025. A non-parole period of one year, three months and 20 days was set on the basis that it represented four fifths of the head sentence. 16 In relation to count one, being the ANCOR disclosure breach, the statement of agreed facts indicates the factual basis upon which the appellant was to be 4 Affidavit of Gian-Luca Stirling (n 2) Exhibit GLS-5: The Parole Board decided to release the appellant on a date to be advised pending suitable release accommodation pursuant to s 17(1)(b)(ia) of the HRO Act and to report to Adelaide Community Correctional Centre within one working day of release. 5 Child Sex Offender’s Registration Act 2006 (SA) s 4A. 6 The offence being a minor indictable pursuant to the Criminal Procedure Act 1921 (SA) s 5(3). -- 5 of 17 -- [2026] SASC 39 Gray J 4 sentenced.7 This factual basis included the following matters. On 3 June 2025, police were notified of a missing person in relation to AT, who was aged 17 and under a guardianship order. Police received information that AT had reported to her DCP carers that she had met a person named [J], who was 29 years of age and who was a sex offender. Police undertook enquiries and identified the appellant as a person of interest. Police identified that the appellant was subject to an ESO and was a serious registrable offender pursuant to the CSOR Act. The appellant had failed to report to DCP carers his registerable status or the fact he had contact with AT. 17 On 5 June 2025, police identified that the appellant was attending Owenia House and he was spoken to at that location. Police conducted a preliminary assessment of his mobile device and identified contact with AT commencing 3 June 2025. The appellant was arrested, and the phone was seized. Police attended at the address of a family member of the appellant who confirmed that AT had been staying there for a few days between the second and fourth of June 2025 and that, during that time, the appellant had attended to spend time with AT. 18 It was agreed that the analysis of the appellant’s phone that was undertaken identified that the appellant had been in contact with AT since at least 22 May 2025, and the contact included emails, calls, texts and voice messages. The appellant failed to report this contact pursuant to his obligations as a serious registerable offender. The appellant also failed to comply with the conditions of his ESO which prevented him from having contact with anyone under the age of 18. At the time of the sentence by the learned Magistrate, the appellant had been in custody since his arrest on 5 June 2025. 19 In relation to counts 1-17 concerning the refusal or failure to comply with a direction issued under s 86 of the CYPS Act, the basis on which the appellant was to be sentenced was the subject of agreed facts which indicated the following matters.8 On 6 June 2025, the appellant was served with a DCP written direction that in part provided that he was not to communicate or attempt to communicate with AT. That written direction was issued the day after the appellant had been arrested in relation to the offending on the ANCOR disclosure breach. At the time of the issue of the direction, the appellant was remanded in custody. 20 On 5 July 2025, being a month after the issue of the written direction, a police officer conducted a review of the prison telephone system. Police identified that between 13 June 2025 and 5 July 2025, on 17 separate occasions, the appellant made contact with AT. On some occasions, the appellant used other prisoners’ prison call accounts to call AT’s registered number and used his own account on two occasions. On 15 August 2025, police attended at the Yatala Labour Prison and arrested the appellant. He was removed from prison and declined to be 7 Affidavit of Gian-Luca Stirling (n 2) Exhibit GLS-1, being the agreed sentencing materials of the parties in Magistrates Court proceeding MCCRM-25-033355 (FDN 14). 8 Ibid. -- 6 of 17 -- [2026] SASC 39 Gray J 5 interviewed. As indicated, the appellant has remained in custody since his arrest until the time of his sentence by the learned sentencing Magistrate, and continues to remain in custody. Statutory basis of the appeal and relevant principles 21 This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and is by way of rehearing.9 To interfere with the exercise of a sentencing discretion, there must be demonstrated error of the kind described in House v King.10 The approach to be adopted was explained in Wittwer v Police.11 In that case, White J held:12 The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or [if it] has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly. 22 In Police (SA) v Chilton,13 Kourakis CJ observed that the sentence imposed by a Magistrate can only be set aside for error in accordance with House v King.14 Kourakis CJ held:15 The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy Magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King. 23 In House v The King, the plurality comprising Dixon, Evatt and McTiernan JJ held:16 It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the 9 Joint Criminal Rules 2022 (SA) r 191.1. 10 House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ) (‘House v The King’). 11 Wittwer v Police [2004] SASC 226 (White J). 12 Ibid [16]. 13 Police (SA) v Chilton [2014] SASCFC 76; (2014) 120 SASR 32 (Kourakis CJ, David J agreeing) (‘Police (SA) v Chilton’). 14 House v The King (n 10). 15 Police (SA) v Chilton (n 13) 38, [19]. 16 House v The King (n 10) 505 (Dixon, Evatt and McTiernan JJ). -- 7 of 17 -- [2026] SASC 39 Gray J 6 exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 24 To establish that a sentence imposed was manifestly excessive, the appellant must establish that the sentence was unreasonable or plainly unjust such that it can be inferred that the outcome has been attended by error.17 It is insufficient to find on appeal that the appellate court would have imposed a different sentence. Rather, the sentence must be outside the permissible range of sentences for the offender and the offence.18 25 In considering whether the sentence is manifestly excessive, regard will be had to the following:19 1. The maximum sentence prescribed by law for the offence; 2. The standards of sentence customarily observed for offences of the kind in question; 3. The place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and 4. The personal circumstances of the offender. 26 If an outcome error is established, the appellate court will resentence, or remit the matter for resentence, having formed the view that the sentence imposed at first instance was either manifestly excessive or inadequate. Where a process error is established, the appellate court ought to resentence unless it considers the sentence imposed in the court below was appropriate, notwithstanding the error.20 Whilst I have summarised the submissions of the parties in these reasons, I have had regard to the detail of the written submissions and the oral submissions made in Court today. Ground 1 27 Ground 1 alleges that there were factual errors in the remarks of the learned sentencing Magistrate. There are three aspects to the complaint that the appellant advances. 28 The appellant claims that in respect of the first complaint regard needs to be had to the chronology of events. The appellant states that he was subject to an extended supervision order that was imposed on 12 March 2025. On 3 June 2025, it was alleged that he failed to comply with a requirement in relation to contact with a female child, AT, during May 2025. The appellant was arrested while 17 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ). 18 See Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601. 19 R v Morse (1979) 23 SASR 98, 99 (King CJ, White and Mohr JJ agreeing); see further, Mahon v Commissioner of Police (SA) [2024] SASC 147, 3 [12] (Stanley J). 20 R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42, 50 [37]-[38] (Kourakis J). -- 8 of 17 -- [2026] SASC 39 Gray J 7 attending counselling on 5 June 2025 in relation to these allegations. He was imprisoned at that time and remains in prison. On 6 June 2025, whilst he was in prison he was served with a s 86 notice,21 which required him not to contact AT. In breach of that notice, the appellant contacted AT from prison between 13 June and 5 July 2025 on 17 occasions. 29 The appellant complains that the learned sentencing Magistrate in his reasons indicated that the appellant continued to breach the notice whist he was in prison. The appellant claims that this is incorrect as the notice was not served on the appellant until he was in prison on 6 June 2025. The complaint appears to be that there was incorrect characterisation of the breach as continuing. The appellant alleged that this implies the learned sentencing Magistrate acted on the incorrect factual premise that the appellant breached s 86 both before and after he was in prison. 30 The respondent contends that the reference that the appellant identifies to the term ‘continued’ in the sentencing remarks was a reference made in the context of the learned sentencing Magistrate referring to the relationship between the defendant and the child, and also occurred in the context of an introductory statement indicating that the learned Magistrate was addressing the aggravating features of the offending.22 31 To consider these aspects of Ground 1 it is necessary to have regard to the remarks on penalty of the learned sentencing Magistrate of 27 October 2025. On page four of those remarks the learned sentencing Magistrate states: You met the victim in about May 2025 at the Adelaide Train Station. She was homeless and you were told she was 18. Your life was transient, you were struggling in the community with mental health issues, you had some suicidal ideation and were trying to seek help. You befriended her. Eventually it became apparent to you of her status and that she was a child who was under a guardianship order. You commenced a relationship with her and you continued to contact her even after being placed in custody because I am told you had concerns about her welfare and in your mind you were trying to assist her. (emphasis added) 32 Earlier on page three of his Honour’s reasons, the learned sentencing Magistrate had set out the relevant chronology including that the appellant had been served with the notice on 6 June 2025 whilst in custody and that the offending occurred on 17 occasions whilst the appellant was in custody in respect of the 17 written direction breaches. 33 Given those findings of the learned sentencing Magistrate, the appellant has not made out that the passage referred to above contains any factual error. The 21 That is the notice pursuant to s 86 of the Children and Young Peoples Safety Act 2017 (SA). 22 RWS (n 1) [10]. -- 9 of 17 -- [2026] SASC 39 Gray J 8 matters recorded were the subject of agreed facts which provided relevant background to the offending. The remarks did not suggest that the learned sentencing Magistrate considered the offending occurred both prior to, and after, the appellant being incarcerated. The learned sentencing Magistrate’s findings record a factual basis which aligns with the agreed facts. The learned sentencing Magistrate then goes on, at page 5, to say: There are a number of aggravated features to your offending. You then were taken into custody and your contact with the victim continued in breach of the written direction. It is a further aggravating feature that the offending commenced only 7 days after you were personally served with the written direction by the Chief Executive. Your offending continued when you were in custody, contacting the victim by phone, using other prisoners telephone accounts including your own. (emphasis added) 34 There is nothing in that passage that makes out the complaint that the learned sentencing Magistrate erred in considering that the offending occurred both prior to and after the appellant’s incarceration. It is clear that the sentencing Magistrate is referring to the aggravating features of the offending and that the 17 counts of failing to comply with the directions issued under s 86(4) of the CYPS Act all occurred at a time that the offender was incarcerated. It follows that I find the appellant has not made out this aspect of Ground 1. 35 The second aspect complained of in Ground 1 is a complaint that the learned sentencing Magistrate referred to the child, AT, as a victim. 36 The appellant complains that the learned Magistrate made findings at page 4 of the sentencing remarks that the contact with AT did not involve any physical or sexual contact and that there was no sexualised content in the circumstances. The appellant goes on to state that the learned Magistrate nonetheless, on a number of occasions, referred to AT as a victim when there was no evidence that she was or could have been harmed by the contact, nor was there any evidence that she felt in any way threatened or harmed by the contact. The appellant further complains that the learned sentencing Magistrate’s references to AT as a victim were inconsistent with the regulatory nature of the appellant’s breaches of s 86 of the CYPS Act.23 37 The respondent contends that the learned sentencing Magistrate correctly had regard to the fact that the written directions and the ANCOR disclosure 23 This was particularised in ground 1(b) of the appellant’s written submissions. The appellant’s counsel submitted although the breaches of the reporting conditions were serious and important, the learned Magistrate’s description of AT as a “victim”, in the absence of sexualised contact or sexualised content, meant it was not open to characterise AT as a victim. Properly understood, the offending consisted of breaches of reporting obligations, and it was on that basis that the appellant ought to have been sentenced: See Transcript 3.31-4.4, 4.24-6.12. -- 10 of 17 -- [2026] SASC 39 Gray J 9 requirements are preventative and monitoring measures aimed at protecting children who are particularly vulnerable to exploitation and manipulation.24 The respondent contends that implicit in the learned Magistrate’s consideration of the appellant’s conduct was that the conduct gave rise to a risk that AT would be harmed or adversely impacted in some way. The respondent contends that this was an entirely reasonable conclusion in light of the nature of the charges, the factual basis for the sentence and the appellant’s prior offending, including breaches of his ESO. 38 I consider the second aspect of Ground 1 by reference to the learned sentencing Magistrate’s remarks. The learned sentencing Magistrate relevantly held:25 It is important to note that the written direction is issued by the Chief Executive was considered reasonably necessary to prevent harm to the victim in this matter and it was reasonably necessary to prevent the victim from engaging in or being exposed to conduct of a criminal nature. It is important to note that the direction was made under the Child and Young People (Safety) Act and that directions made under this Act are an important response to instances of sexual abuse of children in circumstances where children can be manipulated, exploited by adult offenders. The consequence of breaching a direction can involve physical, psychological and emotional harm to a victim and that needs to be acknowledged. It is important to note that the written direction is preventative in nature and must be properly enforced to maintain the effectiveness of the protection provided under the directions to victims who are young children and open to exploitation and manipulation. The court is obliged to deal with breaches of preventative orders in a way which demonstrates to the perpetrator and to the community, generally, that such conduct will not be tolerated. 39 The learned Magistrate had also noted:26 I make clear in sentencing that there is no suggestion that your contact with the victim in any way is associated with any sexual or physical conduct or any threats or sexualised communication. … You are a 32-year-old male, the victim is 17 years old and was under the guardianship of the Minister. She is a minor under law. 40 I do not consider that the appellant has identified error in this ground. The offences involved the appellant having contact with a minor. The appellant was an adult. The written direction that was issued by the Chief Executive was to prevent 24 Sentencing Remarks of Magistrate Smolicz dated 27 October 2025, 5 [9]-[11]. 25 Ibid 4 [10]-[11], 5 [1]-[3]. 26 Ibid 4 [6], 5 [8]. -- 11 of 17 -- [2026] SASC 39 Gray J 10 harm to the child. The written direction was considered reasonably necessary to prevent AT in engaging or being exposed to conduct of a harmful nature. In my view, the context of the allegations, and in particular the purpose of the written direction being to protect AT, means there is no error in the learned sentencing Magistrate referring throughout the sentencing remarks to AT as a victim. The second aspect of this ground has not been made out. Ground 2 41 The complaint in relation to Ground 2 is that the learned sentencing Magistrate erred in failing to properly assess the need for concurrency between the sentences that were imposed. The respondent accepts that whilst there was one continuous process of contact with AT, which could be described as a course of conduct, the offending in respect of the different offences could not be described as a single course of conduct. The respondent identifies the important intervening event being that the appellant was issued with a written direction on 6 June 2025. Further, the respondent contends that the nature of the breaches indicated that the written direction breaches occurred after and were separate to the ANCOR breach and was of a different nature. 42 In considering the question of concurrency, it is relevant to have regard to the decision of the Court of Appeal in Cox v The King.27 In that case the Court had regard to inter alia the principles outlined in Attorney-General v Tichy,28 in which Wells J held:29 … Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterisation rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course, where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration. 27 [2023] SASCA 43. 28 (1982) 30 SASR 84. 29 (1982) 30 SASR 84, 92-93 (Wells J). -- 12 of 17 -- [2026] SASC 39 Gray J 11 43 Reference was also had to the decision of Kourakis J, as his Honour then was, in R v Copeland (No. 2).30 Kourakis J held:31 First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms. … Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence. Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability. There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent, if any, to which the sentences imposed for them should be concurrent. I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single, or a number of, courses of conduct. Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent. (citations omitted) 44 For the reasons outlined below and also in relation to Ground 3, I find that there is no error in the learned sentencing Magistrate’s decision to treat the written direction breaches being the offence contrary to s 86(4) of the CYPS Act, as being cumulative on the breach of s 66L(2) of the CSOR Act, being the ANCOR disclosure breach. Whilst all of the offending with which the respondent was charged and sentenced involved and was consequent upon his contact with AT, the offending, in my view, did not constitute a single course of conduct. 45 There was an important intervening event which occurred when the appellant was issued with the written direction on 6 June 2025, at which time he was incarcerated. Prior to the issue of that direction, the contact of the appellant with AT had been in breach of the appellant’s ANCOR requirements which related to any child. Those requirements generally do not prohibit contact but rather impose an obligation for notice to be given to a responsible person as soon as reasonably practicable after the reportable contact occurred.32 46 In contrast, the written direction specifically related to AT and prohibited all communication with her. I consider the breaches of the written direction occurred after, and were separate to, the ANCOR breach, and were of a different nature. 30 (2010) 108 SASR 398. 31 (2010) 108 SASR 398, 105-106 (Kourakis J). 32 The Appellant’s ESO prohibited any contact with a child unless supervised or with approval by his supervising officer. -- 13 of 17 -- [2026] SASC 39 Gray J 12 The breaches did not overlap in terms of their timing and due to the different nature of the breaches they were, in my view, separate incursions into criminal conduct.33 47 The learned sentencing Magistrate was entitled to consider that the written direction breaches warranted a separate, consecutive penalty in order to adequately address and achieve the objects of the sentencing process.34 It was not the case that these incursions into criminal conduct occurred over such a short period of time that the appellant could be said to have had no time to reflect upon his conduct. The appellant was in prison for the ANCOR breach at the time he was issued with the written direction.35 48 I refer to the decision of Doyle J, with whom Nicholson and Hughes JJ agreed, who stated in Giordimania v R:36 The rationale underpinning the principles of concurrency is ultimately the need to ensure that, in a case involving multiple offences, the aggregate sentence is proportionate to the overall criminality and circumstances of the offending and the offender.37 Understood in this way, those principles can be seen as but one of the sentencing options or mechanisms available to a sentencing judge in a case involving multiple offences to ensure proportionality in the aggregate sentence, with the sentencing judge retaining a broad discretion in terms of how best to structure the sentence to be imposed, and address the concern to ensure proportionality in the sentence(s) ultimately imposed. 49 I apply this principle. As I explain further below in relation to Ground 3, I consider that the aggregate sentence is proportionate to the overall criminality and circumstances of the offending and the offender. It was open to the learned Magistrate to impose consecutive penalties to adequately address and achieve the objects of the sentencing process. I dismiss Ground 2 of the appeal. Ground 3 50 The appellant contends that both the starting point in respect of each sentence was manifestly excessive and that the appellant’s personal circumstances were required to be taken into account given the non-sexual nature of the offending. The appellant further contends that all the offending was regulatory in nature without any suggestion of an intention to harm or any evidence of harm being caused to AT as explained further in oral submissions.38 The appellant further complains that 33 Attorney-General (SA) v Tichy (1982) 30 SASR 84, 92-93 (Wells J); see also, Cox v The King [2023] SASCA 43, 8-9 [36] (Livesey P, Bleby and David JJA). 34 Giordimania v R [2020] SASCFC 28, 7-8 [37]-[40] (Doyle J, Nicholson and Hughes JJ agreeing). 35 R v Copeland (No. 2) (2010) 108 SASR 398, [102]-[106] (Kourakis J). 36 [2020] SASCFC 28, [35] (Doyle J, Nicholson and Hughes JJ agreed). 37 R v Copeland (No. 2) (2010) 108 SASR 398, [102]-[106]; R v W, PL [2017] SASCFC 119, [36]-[43]. 38 This was particularised in ground 3(d)(i) of the appellant’s written submissions. The appellant did not expressly articulate in oral submissions the basis for characterising the offences as regulatory. However, by reference to page 4 of the learned Magistrate’s sentencing remarks, counsel emphasised that there was no physical sexual contact and no sexualised content in any of the relevant communications, distinguishing the present case from instances involving sexual contact or communicated sexualised content: see Transcript 3.9-29. -- 14 of 17 -- [2026] SASC 39 Gray J 13 the learned Magistrate made the two sentences wholly cumulative without considering principles of concurrency and totality. 51 The respondent contends that the appellant’s characterisation of the offending as regulatory in nature without any suggestion of intention to harm, or any evidence of harm being caused to AT is a mischaracterisation of the nature of the offences and a minimisation of the real risk to which AT was exposed to by the appellant’s conduct.39 I agree with that submission. 52 The respondent contends that the s 66L offence is more properly characterised as a measure to prevent and detect the potential commissioning of offending against children with whom the offender has contact and intends to have contact with. The offence is committed as soon as a reasonably practicable after the opportunity has passed within which the disclosure could have been made. The respondent further contends that an obligation to comply with a written direction issued under s 86 of the CYPS Act is an even more targeted measure taken when a specific risk has been identified in relation to a particular child under the guardianship of the Chief Executive. The respondent contends that it was relevant for the learned Magistrate to have regard to the appellant’s offence history, the fact that the head sentence imposed by Judge Davison on 7 May 2021 had only expired about one year prior to the current offending, and the fact that the offending was committed whilst the appellant was subject to an ESO and that his risk of sexual offending of a similar nature to that for which Judge Davison imposed a sentence remained high and acute,40 as he had not completed any rehabilitation programs. 53 The respondent contends that in the circumstances of the offending, the starting point of 12 months imprisonment in respect of the ANCOR disclosure breach, being one fifth of the maximum penalty, was entirely appropriate and indeed lenient in the circumstances. 54 The respondent further contends, with respect to the written direction breaches, that the learned Magistrate noted these were aggravated by the fact that the offending commenced only seven days after the appellant had been served with a written direction and involved the appellant using other prisoners’ telephone accounts as well as his own. The respondent contends that the learned Magistrate was correct to characterise the offending as “blatant, ongoing, pre-meditated and designed to avoid detection”.41 55 The learned sentencing Magistrate properly had regard to a number of relevant factors in sentencing. I consider the circumstances of this case is such that there was little scope for leniency in respect of this offender. The appellant is a convicted child sex offender who is on the ANCOR for life. He was sentenced as a serious repeat offender in the District Court on 7 May 2021. That sentence included sentences being imposed for two counts of aggravated offence of 39 RWS (n 1) [24]. 40 Affidavit of Gian-Luca Stirling (n 2) 3, [2]: see opinion of Dr Lim (Exhibit GLS-3). 41 Sentencing Remarks of Magistrate Smolicz dated 27 October 2025, 5 [13]. -- 15 of 17 -- [2026] SASC 39 Gray J 14 producing child exploitation material, the aggravated offence of communicating to procure a child for sexual activity and obtaining access to child exploitation material. A further relevant background was that on 12 March 2025, the appellant was placed on a high-risk offender extended supervision order by this Court and that order remains in place until 11 March 2030. The order was put in place because the appellant was considered to be a high-risk offender and pose an appreciable risk to the safety of the community if not supervised under the terms of that extended supervision order. There is no suggestion that the appellant was resentenced for these prior offences, rather they are relevant background to the offending and relevant to a consideration of the ground of manifest excess. 56 The appellant is said to have displayed poor victim empathy. I also consider, the personal circumstances of the appellant as set out in the sentencing remarks of Judge Davison. These matters included a chaotic and dysfunctional upbringing in which the appellant was the victim of sexual abuse. Drugs and alcohol are also said to have played a significant role in the appellant’s life. The appellant is also said to have had a number of physical difficulties. 57 In relation to the ANCOR disclosure breach, the maximum penalty was five years imprisonment. The starting point of 12 months imprisonment does not indicate manifest excess. 58 In relation to the written direction breaches, the maximum penalty was three years for a first offence. The starting point of eight months in my view was within an appropriate range and does not of itself indicate manifest excess given the approach of the learned sentencing Magistrate. This was significantly reduced by the imposition of one penalty pursuant to s 26 of the Sentencing Act of 18 months. I have had regard to the submissions of the parties concerning sentencing standards for these types of offences. 42 59 I consider that the nature of the breaches both in respect of the ANCOR disclosure breach and the written direction breaches were not the most serious form of breach. I consider that the ANCOR breach was offending which could be considered to be in the middle range as the offending did continue for some time. In relation to the written direction breaches, I accept the offending was towards the lower or middle range. The conduct in respect of both offences was blatant, however in respect of the written direction and breaches, there were deliberate steps taken to avoid detection using other prisoners’ phones. 60 I do not consider that there was a failure in the sentencing process by reason of the alleged failures advanced in oral submissions of counsel for the appellant today concerning totality and concurrency. I do not consider that the sentence ultimately imposed was lacking in proportionality.43 I find that the sentence imposed was not unreasonable or plainly unjust and was not manifestly excessive. 42 Neither party sought to rely upon any specific authority in respect of this aspect of the submissions. 43 Giordimania v R [2020] SASCFC 28, 7-8 [36] per Doyle J (Nicholson and Hughes JJ agreeing). -- 16 of 17 -- [2026] SASC 39 Gray J 15 Having regard to the nature of the offending, and the circumstances of the offending, there was a clear need for both general and specific deterrence. It follows that Ground 3 should be dismissed. Conclusion 61 The order of this Court is: 1. The appeal against sentence be dismissed. I will hear from the parties as to any other matters. -- 17 of 17 --