JACOB WALSH v THE KING [2024] SASCA 146

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TRACEY) DCCRM-22-007715 Appellant: JACOB WALSH Counsel: MR J LYONS - Solicitor: MR W MORRIS Respondent: THE KING Counsel: MS A FISHER WITH MS B SYMES - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 15/02/2024 File No/s: SCCRM-23-029426 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. WALSH v THE KING [2024] SASCA 146 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 19 December 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE This is an application for permission to appeal against sentence. The appellant pleaded guilty to 230 child sex communication and child exploitation material charges and was sentenced to imprisonment for 22 years, together with a non-parole period of 17 years and 8 months. The appellant’s offending was sustained and extremely serious. Over the course of over two and a half years, concluding with the appellant’s arrest, the appellant pretended to be a boy of 15 years and exchanged thousands of electronic communications with 15 female children aged between 10 and 16 years, procuring sexually explicit images and videos from them. In addition, the appellant was found to be in possession of other child exploitation material depicting unidentified victims. The first Information was laid on 6 May 2021, alleging two counts of possessing child exploitation material contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), followed by a second Information dated 25 August 2021 which contained 45 counts of offending relating to the production of child exploitation material and making communications for a prurient purpose with the intention of making a child amenable to sexual activity, contrary to the CLCA. The third and final Information containing all 230 charges, was laid on 31 May 2022. The appellant raised six appeal grounds, broadly: -- 1 of 38 -- 1. The sentencing judge incorrectly equated the criteria necessary for a mental impairment “defence” with that of a mitigating factor based on a psychological impairment such as autism. 2. The sentencing judge erred in finding that the appellant continued to communicate with two of the victims after his initial arrest. 3. The sentencing judge failed to adhere to s 40(2) of the Sentencing Act 2017 (SA) (the Sentencing Act) and, thereby, failed to give the appellant the full available reduction in respect of all pleas on each count of the third Information. 4. The sentencing judge erred in failing to apply s 40(5)(e) of the Sentencing Act and, thereby, allowed less than the full available reduction for all pleas of guilty on each count of the third Information. 5. The sentencing judge erred in law in accepting that the counts in the first two Informations were replicated in the third Information and, therefore, that all counts in the third Information were new counts that should have attracted the full available reductions due to the pleas of guilty which were made within four weeks. 6. The sentence was manifestly excessive. Held (the Court) granting permission to appeal but dismissing the appeal: 1. There was no suggestion that the appellant’s diagnosis of autism spectrum disorder relevantly compromised the appellant’s functioning, nor that it prevented him from recognising that his conduct was both wrong and harmful. The suggestion that the appellant’s autism affected his insight was properly rejected by the sentencing judge. [35] 2. Despite the likely minimal weight given to the matter of the appellant’s offending after his arrest, it is a serious matter to suggest that a defendant has brazenly continued to offend after arrest and release on bail. It is difficult to regard the reference to this conduct as anything other than an aggravating feature. On the face of it, a material error has been made. [43]-[44] 3. The meaning and effect of s 40(2) of the Sentencing Act is concerned with the identification of the applicable sentencing reduction regime and nothing more. It does not directly specify the maximum reductions available for pleas of guilty. [55]-[58] 4. The prospect of further charges does not, without more, demonstrate that a defendant could not reasonably have been expected to plead at an early stage. The appellant has not identified any evidence of any difficulty in understanding the nature of the offending alleged, or of advising on the scope to plead guilty to the offending alleged in the first and second Informations. Merely pointing to the scope for further particulars will not necessarily avail a defendant, particularly where the alleged offending, although general, adequately identified the nature and scope of the conduct targeted. [62]-[66] 5. The sentence imposed in this case is heavy. However, it is appropriately heavy given the serious and sustained offending by the appellant. [85]-[87] 6. The error made in connection with appeal ground 2 requires this Court to independently re- exercise the sentencing discretion. Relying on the approach laid out by the High Court in Kentwell v The Queen (2014) 252 CLR 601, where this Court concludes in the separate and independent exercise of its discretion that no different sentence should be passed, it is not required to actually re-sentence the appellant. [88]-[90] Criminal Law Consolidation Act 1935 (SA) ss 63, 63A, 63B, 139A, 269C; Sentencing Act 2017 (SA) ss 26,39, 40, referred to. Ali (A Pseudonym) v The Queen [2021] SASCA 142; Bechara v The Queen [2022] SASCA 37; Brooker v The King [2024] SASCA 135; Bugmy v The Queen (2013) 249 CLR 571; Cromb v The King; Pay v The King [2024] SASCA 8; Director of Public Prosecutions (SA) v Jones [2021] SASCA 114; Elturk v The Queen (2014) 239 A Crim R 584; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Kuchar v The Queen -- 2 of 38 -- (2019) 135 SASR 185; Markarian v The Queen (2005) 228 CLR 357; Mason-Stuart v The Queen (1993) 61 SASR 204; Murphy (a pseudonym) v The King [2023] SASCA 107; Nguyen v The Queen (2022) 140 SASR 554; R v Bahrami (2020) 137 SASR 327; R v Bradley [2024] SASCA 56; R v Brandon [2024] SASCA 9; R v Engert (1995) 84 A Crim R 67; R v Hronopoulos (2017) 269 A Crim R 551; R v Monks (2019) 133 SASR 182; R v Nankivell [2022] SASCA 87; R v Perry [2022] SASCA 127; R v Sebalj [2006] VSCA 106; R v Wiskich [2000] SASC 64; Saffin v The Queen [2020] NSWCCA 246; Veen v The Queen (No 2) (1988) 164 CLR 465, considered. -- 3 of 38 -- -- 4 of 38 -- WALSH v THE KING [2024] SASCA 146 Court of Appeal – Criminal: Livesey P, Bleby and David JJA THE COURT: Introduction 1 This is an application for permission to appeal against sentence following pleas of guilty to 230 charges concerning: 1. 15 counts of dishonestly communicating with a child, contrary to s 139A(2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty at the relevant time was 10 years’ imprisonment for each offence; 2. 59 counts of producing child exploitation material knowing its pornographic nature, contrary to s 63(a) of the CLCA, for which the maximum penalty at the relevant time was 10 years’ imprisonment for each offence; 3. 18 counts of aggravated production of child exploitation material, contrary to s 63(a) of the CLCA, for which the maximum penalty at the relevant time was 12 years’ imprisonment for each offence; 4. six counts of dissemination of child exploitation material, contrary to s 63(b) of the CLCA, for which the maximum penalty at the relevant time was 10 years’ imprisonment for each offence; 5. one count of aggravated possession of child exploitation material, contrary to s 63A of the CLCA, for which the maximum penalty at the relevant time was seven years’ imprisonment for each offence; 6. one count of basic possession of child exploitation material, contrary to s 63A of the CLCA, for which the maximum penalty at the relevant time was five years’ imprisonment for each offence; and 7. 130 counts of communicating with a child for a prurient purpose, contrary to s 63B(3)(b) of the CLCA, for which the maximum penalty at the relevant time was 10 years’ imprisonment for each offence. 2 The sentencing judge imposed a head sentence of 22 years’ imprisonment and fixed a non-parole period of 17 years and eight months. 3 Attached is a schedule prepared by the sentencing judge which, in compliance with s 26(2a) of the of the Sentencing Act 2017 (SA) (the Sentencing Act), indicates her Honour’s view of the maximum reduction applicable on account of the appellant’s pleas of guilty, the notional sentence to which that was applied, and the resulting sentence for each count. The sentencing judge took the view that -- 5 of 38 -- [2024] SASCA 146 The Court 2 the sentences relating to each of the appellant’s victims might properly have been dealt with cumulatively but, even allowing for significant concurrency, the result would have been a sentence which was described by her Honour as “an artificial and ultimately crushing sentence”.1 4 Accordingly, the sentencing judge utilised s 26 of the Sentencing Act to impose one sentence which reflected the total criminality of the appellant’s charged offending. The non-parole period was fixed on the basis that the appellant was a serious repeat offender, and his non-parole period must be at least four-fifths of the head sentence. 5 The sentence and the non-parole period were backdated to commence from 24 August 2021, when the appellant was taken into custody. An order for the forfeiture of all mobile telephones, storage devices and computers was made. 6 As will be seen, the appellant’s offending was rightly regarded as extremely serious. It is an example of very serious offending of its kind. The principles relating to this kind of offending have been traversed in a number of recent decisions.2 7 Pretending to be a 16-year-old boy, the appellant exchanged over 215,000 electronic communications with 15 female children over two and a half years between 17 September 2018 and 5 May 2021. These children were aged between 10 and 16 years and located in Australia and overseas. The appellant manipulated them into engaging in sexually explicit role playing, and he procured sexually explicit images and videos from them. 8 The appellant was, in addition, found to be in possession of other child exploitation material depicting unidentified victims. Although a number of the 15 victims were obviously emotionally fragile, and some were contemplating or had attempted suicide, the appellant relentlessly and ruthlessly persisted in engaging them in sexually explicit exchanges. The appellant cynically exploited them all for his own sexual gratification. 9 For the following reasons, permission to appeal should be granted, but the appeal dismissed. The proposed appeal grounds 10 In broad outline, the appellant maintains the following proposed grounds: 1 R v Jacob Donald Walsh, sentencing remarks delivered 21 July 2023 (Judge Tracey) (Sentencing Remarks), p 16. 2 R v Nankivell [2022] SASCA 87; R v Brandon [2024] SASCA 9; Brooker v The King [2024] SASCA 135. -- 6 of 38 -- [2024] SASCA 146 The Court 3 1. The sentencing judge incorrectly equated the criteria necessary for a mental impairment “defence” with that of a mitigating factor based on a psychological impairment such as autism. 2. The sentencing judge erred in finding that the appellant continued to communicate with two of the victims after initial arrest. 3. The sentencing judge failed to adhere to s 40(2) of the Sentencing Act and, thereby, failed to give the appellant the full available reduction in respect of all pleas on each count of the third Information. 4. The sentencing judge erred in failing to apply s 40(5)(e) of the Sentencing Act and, thereby, allowed less than the full available reduction for all pleas of guilty on each count of the third Information. 5. The sentencing judge erred in law by accepting that the counts in the first two Informations were replicated in the third Information and, therefore, that all counts in the third Information were new counts that should have attracted the full available reductions due to the pleas of guilty which were made within four weeks. 6. Both the head sentence of 22 years and the non-parole period of 17 years and eight months were manifestly excessive in that the sentencing judge either rejected or failed to give sufficient weight to mitigating factors. The principal mitigating factor appears to be the appellant’s autism. The circumstances of the offending 11 On 15 March 2021, the appellant came to the attention of police in the course of the investigation of another man, Bowen.3 It was discovered that they had used New Zealand-based storage software and had been sharing child exploitation material. Six counts relate to the sharing of that material. 12 The appellant and Bowen had been discussing the targeting of children online to produce child exploitation material through a combination of grooming, threats and blackmail. They shared the names of the children from whom they had succeeded in procuring child exploitation material. The appellant had used an Instagram account and a related email account to contact children. He represented himself as a 16-year-old boy, using photographs of his stepdaughter’s boyfriend. 13 Between 5 and 11 May 2021, police searched the appellant’s home and seized his electronic devices. Analysis revealed the 15 identified victims in Australia and overseas and with each of whom the appellant had exchanged thousands of 3 Cameron Robert Bowen was sentenced in the District Court by Judge Davison on 21 December 2022 following pleas of guilty to a number of Commonwealth offences and a State offence of maintaining an unlawful sexual relationship with a child, for which he received sentences totalling 15 years’ imprisonment and non-parole periods totalling 8 years and 6 months. -- 7 of 38 -- [2024] SASCA 146 The Court 4 messages. These messages formed the basis of the charges relating to communications. 14 Posing as “Jason Edwards” the appellant encouraged the children to send him sexually explicit images and videos in connection with sexually explicit role playing. With some of the children there were mutual expressions of love. 15 One of the children said she was planning suicide and the appellant encouraged her not to harm herself, whilst maintaining sexually explicit conversations, requesting lewd acts and images to be sent. With some of the victims, the appellant asked them to insert objects such as a highlighter or a hairbrush into their vaginas and to send him images. With another child aged between 14 and 15, the appellant engaged in sadomasochistic role playing which involved the appellant as kidnapper or teacher. 16 On occasions the appellant encouraged the children to masturbate, and he enquired whether they had engaged in sexual activities such as having given a “blow job” or touched a “dick”. With one of the children the appellant promised to conceive a baby with her, which was something said in the course of asking for photographs of her naked body. 17 In the case of a number of the children, analysis of the appellant’s laptop or phone revealed that he kept digital folders naming the children. These contained images and videos comprising child exploitation material. In all, there were 62 child exploitation images and videos, many of which depicted the victims the subject of charges. However, many others were of unknown children. 783 child exploitation images and videos were not the subject of charges. 18 None of the victims provided victim impact statements. The Commissioner for Victims’ Rights provided a community impact statement which was tendered. The appellant provided a letter of apology in which he recognised the emotional trauma he caused to each of his victims. The circumstances of the offender 19 The appellant is presently 38 years. He enjoyed an unremarkable childhood with loving parents and older siblings. His parents are in their 60s and have been happily married for over 45 years. 20 The appellant was described as a model student with no difficulties at school. He had no trouble establishing friendships and socialising with students who shared the appellant’s interest in football and basketball. 21 The appellant successfully completed Year 12 and completed a Certificate 4 in Information Technology involving a two-year traineeship, after which he joined the RAAF at the age of 23. As part of his service, the appellant resided in various locations in Australia and overseas. His duties were in airforce intelligence which required advanced computer skills. There were two tours of duty in the Middle -- 8 of 38 -- [2024] SASCA 146 The Court 5 East, one lasting four and a half months and the second, lasting six months. The appellant’s job was described as being stressful, some of it involving classified intelligence. The appellant was responsible for recording major airstrikes causing multiple fatalities. 22 Following his arrest, the appellant’s employment with the RAAF was terminated and he has had no contact with any of his siblings. 23 The appellant experienced no difficulties socialising with women and has had only one significant relationship, being with his wife. The appellant and his wife married at the age of 27 and they previously enjoyed a happy marriage. The appellant and his wife have an eight-year-old son. The appellant’s wife and son have relocated to Tasmania. Whilst the appellant has been in custody, he has been in telephone contact with his son. 24 The appellant has had some physical symptoms associated with sporting activities and claims to have sustained broken ribs, a split head and bruising to his neck in the course of the arrest by STAR Force at his home in May 2021. 25 Mr Balfour, psychologist, diagnosed Autism Spectrum Disorder (ASD) in the appellant. Mr Balfour described the appellant as an emotionally reticent man who had trouble expressing his feelings. He was described as a person with high functioning autism. Appeal ground 1 26 The appellant maintains that his autism gives rise to a form of diminished responsibility which should have been recognised as a mitigating factor. The appellant contends that this is distinct from any defence of mental incompetence arising under s 269C of the CLCA. 27 The appellant emphasised passages in the remarks of the sentencing judge which, it was said, failed to recognise the distinction between the mitigating factor of diminished responsibility and the complete defence of mental incompetence. On a number of occasions, the sentencing judge referred to the observations of Mr Balfour to the effect that, despite the appellant’s poor mental health and ASD, he was able to sufficiently appreciate the nature and quality of his actions and their wrongfulness. 28 The appellant contended that the sentencing judge denied him the mitigating factor of “having autism”. The sentencing judge rejected a submission that, given the appellant’s diagnosis of autism, he had limited understanding of the extent of his criminal culpability and the extent of the harm that he was perpetrating. The passage relied on is as follows:4 4 Sentencing Remarks, p 6. -- 9 of 38 -- [2024] SASCA 146 The Court 6 … Mr Balfour plainly believes that despite your poor mental health and the diagnosis of autism you would still have been able to sufficiently appreciate the nature and quality of what you were doing and how wrongful it was. Furthermore, while I accept the relevance of mental health diagnoses in the sentencing process, that also needs to be weighed against the severity of the offending which here can only be described as brazen, shocking and devoid of any regard for the frailties and vulnerabilities of the children who you abused so regularly and for so long. The principles of personal and general deterrence are significant in primary sentencing considerations in this matter. There is no scope to reduce the importance of these considerations because of your autism diagnosis. 29 The appellant submitted that the sentencing judge conflated the criteria for mental incompetence with the criteria for diminished responsibility and, thereby, erred in law. 30 For the Director of Public Prosecutions (SA) (the Director) it was submitted that there was no evidence to demonstrate that the appellant did not understand the wrongfulness of his conduct. The Director submitted that the evidence demonstrated that the appellant knew that his conduct was wrongful and reliance was placed on the following matters: 1. The appellant hid his identity; 2. The appellant warned his victims to be careful of “creeps” on the internet who were over 18 years; 3. The appellant asked his victims whether their parents had access to their phones or passwords; 4. The appellant deflected accusations by victims that he was an adult and a paedophile; 5. The appellant deleted his Instagram account before police attended at his home; 6. When interviewed by police, the appellant denied his offending; 7. On two occasions during submissions before the sentencing judge, counsel for the appellant conceded that his client likely knew that what he was doing was wrong. 31 The appellant relied on Mason-Stuart v The Queen.5 That was a case involving the rape of a 12-year-old girl. The appellant appealed a sentence of four years’ imprisonment with a non-parole period of two years. He was 20 years of age. The victim was playing in a public reserve and was spoken to by the appellant, 5 Mason-Stuart v The Queen (1993) 61 SASR 204 (King CJ, Millhouse and Olsson JJ). -- 10 of 38 -- [2024] SASCA 146 The Court 7 who knew her. As she made her way home, the appellant followed. He dragged her into a toilet and raped her by penetrating her anus with his penis. 32 Chief Justice King described “special features associated with this matter” comprising the appellant’s brain damage sustained before birth, which had affected his physical growth and mental capacity. Whilst the appellant was able to maintain employment, he had an impaired capacity to appreciate the nature of interpersonal and sexual relationships. This impaired capacity, the Chief Justice said, comprised “a substantial degree of diminished responsibility”. It had the effect of diminishing the appellant’s “subjective responsibility”:6 It seems to me that the degree of the appellant’s subjective responsibility is so diminished by the damage to the brain which he has suffered, that a court must try to find some way of protecting the public which does not impose the heavy burden of a long period of imprisonment upon a person whose subjective responsibility has been so diminished. It is a problem of reconciling the mercy which ought to be shown to a person whose subjective moral responsibility is low, with the need to protect the public from this sort of act of which the appellant was guilty. The importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a deterrent to other members of the public, is considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be. A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others and the ends of justice are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender’s offending. 33 Mason-Stuart v The Queen was a clear case but not one that can usefully be applied to this case. The Court of Criminal Appeal and more recently this Court have considered a number of cases where it was contended that an offender’s functioning was compromised by mental illness or intellectual disability or other diagnosed conditions which were relevant to the determination of sentence.7 As these cases show, it is inappropriate to contend that simply because an offender has a diagnosis, whether or not made under DSM 5, that will necessarily furnish grounds for leniency. Each case must be evaluated having regard to its particular facts and circumstances. That is to say, as was recently emphasised in the case of Cromb v The King; Pay v The King, a diagnosed mental condition – in that case autism - is not always mitigatory:8 6 Mason-Stuart v The Queen (1993) 61 SASR 204, 205-206 (King CJ, with whom Millhouse and Olsson JJ agreed). 7 R v Wiskich [2000] SASC 64, [62] (Martin J, with whom Prior and Williams JJ agreed); R v Hronopoulos (2017) 269 A Crim R 551, [23]-[33] (Stanley J) and [69]-[72] (Hinton J); R v Monks (2019) 133 SASR 182, [35]-[59] (Doyle J, with whom Peek and Parker JJ agreed); Kuchar v The Queen (2019) 135 SASR 185, [19]-[41] (Stanley J, with whom Kelly J and David AJ agreed); Director of Public Prosecutions (SA) v Jones [2021] SASCA 114; Ali (A Pseudonym) v The Queen [2021] SASCA 142; Nguyen v The Queen (2022) 140 SASR 554; R v Perry [2022] SASCA 127. 8 Cromb v The King; Pay v The King [2024] SASCA 8, [79]-[80] (Bleby, David JJA and Kimber AJA). -- 11 of 38 -- [2024] SASCA 146 The Court 8 The mental condition of a defendant is not always mitigatory. It is necessary to assess the severity of the disorder and the gravity of the crime.9 In R v Engert, Gleeson CJ held that it is:10 … erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in light of the purposes to be served by the sentencing exercise. In Veen v The Queen (No 2), it was observed:11 … mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality. 34 There is no basis for the criticism that the sentencing judge conflated the defence of mental incompetence with the circumstances in which a sentence may be mitigated by reason of diminished responsibility. It was both relevant and appropriate for the sentencing judge to consider the evidence and whether it demonstrated the appellant’s capacity to recognise that his conduct was wrongful. 35 This is not a case where the evidence suggested grounds for leniency on account of ASD. Whilst Mr Balfour diagnosed autism and described the ways in which it affected the appellant and explained his offending, there was no suggestion that it relevantly compromised the appellant’s functioning nor that it prevented him from recognising that his conduct was both wrongful and harmful. To the extent that it was suggested that autism affected the appellant’s insight, the sentencing judge properly rejected that contention. 36 In the circumstances of this case, no error was made in rejecting the contention that ASD gave rise to diminished responsibility. 37 Permission to appeal should be refused in respect of appeal ground 1. Appeal ground 2 38 The sentencing judge found that the appellant continued to communicate with two of his victims after his initial arrest and whilst he was on bail. The Director concedes that this finding was made in error. The error arises in the following passage from the reasons of the sentencing judge:12 9 R v Wiskich (2000) 207 LSJS 431, 457 (Martin J). 10 R v Engert (1995) 84 A Crim R 67, 68. 11 Veen v The Queen (No 2) (1988) 164 CLR 465, 476–477. 12 Sentencing Remarks, p 16. -- 12 of 38 -- [2024] SASCA 146 The Court 9 While conceding that your offending is serious, your counsel submits that you are contrite as shown by your early pleas of guilty and your apology. You have no history of offending [and] general and personal deterrence have less of a role to play in sentencing, given the diagnosis of autism and your limited understanding as to the extent of your criminal culpability, and the extent of the harm you were perpetrating on the victims. I cannot accept those submissions. As the prosecution has submitted, a lack of understanding of the wrongfulness of your behaviour is simply not borne out on the evidence. You created a false identity and had deleted your Instagram account before police attended. You denied the offending in your police interview. You continued to communicate with two of your victims after your initial arrest while on police bail. Your attention to detail, organisation and focus on a specific task, are arguably tools that you would have used to commit this offending so effectively. 39 The finding in the fourth sentence of the last passage was not urged on the sentencing court. 40 The Director explained that the error was an understandable one which appears to have arisen as a result of errors in the dates particularised as part of counts 4 and 50. The particulars to count 4 concluded with a date of 21 May 2021 rather than 21 May 2020. In addition, count 50 particularised a date range which concluded on 28 May 2021. This was when the relevant victim last tried to communicate with the appellant. In fact, his last message to that victim was sent before his release on bail. 41 Whilst the Director concedes that permission to appeal should be granted on this ground, it is also submitted that the error had no significant impact on the sentence because it comprised “only one passing reference” which was not, whether expressly or by implication, taken into account as an aggravating feature. 42 The real issue is not whether an error was made but whether the error was material to the exercise of the sentencing discretion. 43 When the error is considered in the context in which it was made it was utilised as one of the reasons why her Honour rejected the appellant’s arguments about diminished responsibility.13 Whilst the weight given to this matter was likely minimal, it cannot be said to have been immaterial. Even in the context of rejecting a contention about diminished responsibility, it is a serious matter to suggest that a defendant has brazenly continued to offend after arrest and release on bail. 44 It is difficult to regard the reference to this conduct as anything other than an aggravating feature. On the face of it, a material error of fact has been made and appeal ground 2 should be upheld. 13 That is so notwithstanding that it may be difficult to regard this particular factor as providing support for the finding that there was no diminished responsibility. If the appellant had indeed continued to make contact with victims after arrest and bail that could have tended to suggest that he did not recognise that his conduct was wrong. -- 13 of 38 -- [2024] SASCA 146 The Court 10 Appeal grounds 3, 4 and 5 45 By appeal ground 3, the appellant contended that, where he pleaded to multiple offences, the highest maximum potential sentencing reduction available in respect of any one of those offences must be applied to all of them. For example, if the maximum applicable reduction at the time of the pleas of guilty was 40 per cent, then that must be applied even though the timing of the plea might suggest that other maximum reductions were only 10 per cent. 46 As for appeal grounds 4 and 5, it was contended that this was a case where there were three Informations: 1. The first Information is dated 6 May 2021 and alleged two counts of possessing child exploitation material contrary to s 63A(1) of the CLCA. Count 1 alleged aggravating offending in that the children depicted were less than 14 years whereas count 2 alleged basic offending. In support of this Information, the “Facts of Charge” supplied at the time of the Information recounted that following the arrest of another man, analysis of his mobile phone identified communications with the appellant through an Instagram account with a username of “manmountain5” by which they traded details of the online accounts of children who were susceptible to be groomed and who would provide naked and sexualised material of themselves. The appellant had indicated an interest in female children as well as a 12-year-old neighbour. He shared links to his “Mega” cloud storage which he said contained child exploitation material. The information included allegations about the child exploitation material discovered on the appellant’s laptop which depicted at least one child under the age of 10 years involved in penetrative sexual activity. The appellant’s mobile phone and laptop was seized for further examination, together with three further mobile telephones and a number of electronic storage devices. The accused denied any knowledge of “manmountain5” or of the child exploitation material. He admitted that he had taken a photograph of the window into his neighbour’s property but could not explain why he had done this, although he admitted that he was aware that there were two girls living in that property aged 10 and 12 years. 2. The second Information is dated 25 August 2021 and contains 45 counts of offending contrary to the CLCA, including making communications for a prurient purpose with the intention of making a child amenable to sexual activity (s 63B(3)(b)), being basic and aggravated offending and that some of the children involved were alleged to be under the age of 14 years. Other counts alleged the production or the taking of a step in the production of child exploitation material, knowing of its pornographic nature and, here again, alleging both basic and aggravated offending contrary to s 63(a) of the CLCA. -- 14 of 38 -- [2024] SASCA 146 The Court 11 It is unnecessary to go through each of the offences charged. The offending is separated by particular dates and particular charges and supported by a number of documents, including affidavits from a police officer, Detective Brevet Sergeant Hegarty sworn 26 August 2021 and 1 September 2021, as well as another “Facts of Charge” document which further particularised the offending by referring to the relevant dates in respect of each count as well as the substance of the offending. For example, count 1 referred to engaging in sexually explicit communication with a 13 year-old girl online, and count 2 referred to producing child exploitation material by making a screen recording of the exposed breasts of a 13-year-old girl whilst engaging in online communication. 3. The third Information is dated 31 May 2022 and contains 230 counts. It includes the offending referred to in the earlier two Informations and alleged additional offending. Each of the counts provided by way of particulars the dates of the offending as well as the names of the children concerned. It is this Information to which the appellant pleaded guilty, as outlined earlier in these reasons. 47 The appellant’s essential proposition was that, within the meaning of s 40(5)(e) of the Sentencing Act, the sentencing judge failed to find that he had satisfied the Court that he could not reasonably have been expected to plead guilty to the earlier Informations because of circumstances outside of his control. That is, at the time of the earlier Informations there was insufficient detail alleged and, in addition, because the appellant was aware that further charges were to be laid, there was both uncertainty and a risk of duplicity. 48 The appellant contended that, in these circumstances, because he was uncertain what further charges might be laid, and because of the failure to provide particulars, he was not made aware of relevant matters for the purposes of s 40(5)(f) of the Sentencing Act. It was contended that, in those circumstances he could not plead earlier and he was entitled to a greater maximum potential reduction. 49 For the following reasons, permission to appeal these grounds should be refused. 50 In order to understand the appellant’s contentions, it is necessary to consider ss 39(1) and (2), as well as ss 40(1), (2), (3) and (5) of the Sentencing Act which were, at the relevant times, in the following terms: 39—Reduction of sentences for guilty plea in Magistrates Court etc (1) This section applies— (a) if the offence is a summary offence; or (b) if the sentencing court is sentencing in relation to a minor indictable offence that has been tried in the same way as a summary offence; or -- 15 of 38 -- [2024] SASCA 146 The Court 12 (c) in any other circumstances prescribed by the regulations. (2) Subject to this section, if a defendant has pleaded guilty to an offence or offences— (a) not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%; (b) more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but— (i) if a date has been set for a trial for the offence or offences—not less than 4 weeks before that day; or (ii) in any other case—before the commencement of the trial for the offence or offences, the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%; (c) less than 4 weeks before the day set for trial for the offence or offences, and if the defendant satisfies the sentencing court that the defendant could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%; (d) in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%. … 40—Reduction of sentences for guilty pleas in other cases (1) This section applies to a court sentencing a defendant for an offence other than an offence described in section 39(1). (2) If— (a) a defendant in any proceedings is pleading guilty to more than 1 offence; and (b) this section applies to at least 1 of the offences, this section will be taken to apply to all of the offences (despite section 39(1)). (3) Subject to this section, if a defendant has pleaded guilty to an offence or offences— (a) not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 25%; or (ii) in any other case—up to 35%; or -- 16 of 38 -- [2024] SASCA 146 The Court 13 (b) more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but on the day of, or before, the defendant's committal appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 15%; or (ii) in any other case—up to 25%; or (c) during the period commencing on the day after the defendant's committal appearance in relation to the relevant offence or offences and ending immediately before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 10%; or (ii) in any other case—up to 15%; or Note— See also section 110(3) of the Criminal Procedure Act 1921. (d) during the period commencing immediately after the defendant is committed for trial for the relevant offence or offences and ending immediately after the first date fixed for the arraignment of the defendant in a superior court—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 5%; or (ii) in any other case—up to 10%; or (e) during the period commencing immediately after the first date fixed for the arraignment of the defendant in a superior court in relation to the relevant offence or offences and ending at the commencement of the defendant's trial for the relevant offence or offences—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 5%. … (5) In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant: (a) whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice; (b) the stage in the proceedings for the offence at which the defendant indicated an intention to plead guilty (including whether it would, in the opinion of the -- 17 of 38 -- [2024] SASCA 146 The Court 14 court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings); (c) whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged; (d) in the case where the defendant has been charged with more than 1 offence— whether the defendant pleaded guilty to all of the offences; (e) if the defendant satisfies the court that the defendant could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—that fact; (f) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings; (g) whether at any stage in the proceedings for the offence— (i) the defendant disputed the factual basis of the plea; and (ii) a hearing occurred in relation to the dispute; and (iii) the dispute was not resolved in favour of the defendant; (h) if the prosecution satisfies the court that the defendant intentionally concealed the commission of the offence to which the defendant's sentence relates—that fact, and the period of time for which the concealment persisted; (i) whether the prosecution's case against the defendant (the assessment of which should ordinarily be made by reference to evidence in the form of an affidavit, or any other documentary evidence) is so overwhelming that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice; (j) whether any genuine remorse on behalf of the defendant for the commission of the offence is so lacking that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice, and may have regard to any other factor or principle the court thinks relevant. 51 Proposed appeal ground 3 relied upon the terms of s 40(2). In particular, the defendant relied on the words “this section applies to at least 1 of the offences [and] this section will be taken to apply to all of the offences”. These words, it was contended, mean that the highest reduction specified in s 40(3) applies to all of the charges to which the appellant pleaded guilty. 52 The primary difficulty with this contention is that it does not reflect what s 40(2) actually says. That is demonstrated by the appellant’s failure to explain the use of the words in parentheses (“despite section 39(1)”). Read literally, s 40(2) means that where a defendant pleads guilty to more than one offence and -- 18 of 38 -- [2024] SASCA 146 The Court 15 s 40 applies to at least one of those offences, then s 40 is taken to apply to all of the offences to which the defendant pleaded guilty, “despite section 39(1)”. 53 So read, s 40(2) says nothing about applying the highest maximum available percentage reduction to all other offences to which the defendant pleaded guilty. What it says is that the percentage reductions specified by s 40 are to be applied despite the percentage reductions specified in s 39(1) of the Sentencing Act. 54 When read it context, it is therefore clear that s 39 applies where the relevant offending comprises a summary offence or a minor indictable offence tried in the same way as a summary offence. In that setting, s 39(2) specifies potential maximum sentencing reductions of up to 40 per cent. 55 By contrast, s 40 applies to sentencing for offending “other than an offence described in section 39(1)”. That is to say, s 40 applies to major indictable offences. Accordingly, where at least one of the offences to which a defendant pleads guilty is a serious indictable offence, then the maximum available percentage reductions are those specified in s 40(3) rather than those specified in s 39(2), even if some of the offences include summary and minor indictable offences. 56 For example, the counterpart to s 39(2)(a) is s 40(3)(a). If s 39(1) applies, the maximum available reduction is 40 per cent. However, where s 40(2) applies, the maximum available reduction is 35 per cent unless the offence is a serious indictable offence, in which case it is 25 per cent. 57 In these circumstances, it is clear that the meaning and effect of s 40(2) is concerned with the identification of the applicable sentencing reduction regime and nothing more. It does not directly specify the maximum reductions available. 58 Further, and as the Director submitted, the appellant’s suggested approach to s 40(2) ignores the clear legislative intention that separate maximum sentencing reductions will be applied according to the timing at which pleas of guilty are actually entered by a defendant. 59 Appeal grounds 4 and 5 are bound up with the way in which early counts were replaced, or in some instances removed, in later Informations. In general terms, and as the Director submitted, counts 1 and 2 of the first Information correlate to counts 229 and 230 of the third. That is subject to the concession that the final eight counts of the second Information were either withdrawn or altered so significantly that they could not be said to correlate with any count alleged in the third Information. 60 The second Information does not allege offending by reference to counts listed chronologically but, rather, by reference to particular victims. That Information was supplemented by the “Facts of Charge” document which identified the name which the appellant had given to the digital folders in which material relating to each victim was stored. -- 19 of 38 -- [2024] SASCA 146 The Court 16 61 Thirty-three of the s 63(a) offences were replicated in the third Information but others were removed and replaced by charges which were particularised in more detail. For example, when one compares counts 1 to 4 of the second Information, with the counts contained in the third, counts 2, 3 and 4 were replicated as counts 217, 218 and 222. By contrast, count 1 was replaced by counts 119, 128, 138, 188 and 214 where it appears that the prosecution determined to plead the offending with greater particularity. 62 So far as the resolution of proposed appeal grounds 4 and 5 is concerned, the appellant’s essential difficulty is one of fact. Let it be assumed that further particulars could have been provided after the first two Informations were laid. The appellant’s burden was to satisfy the Court that he could not reasonably have been expected to plead guilty at those earlier stages “because of circumstances outside of the defendant’s control”, as s 40(5)(e) required. Alternatively, the appellant needed to identify what it was that he was not made aware of which was both relevant and which would have enabled him to plead guilty at those earlier stages, as s 40(5)(f) required. 63 This burden needed to be shouldered in a context where a number of authorities have recognised that higher sentencing reductions apply when pleas are made early because of their utilitarian effect, including because at those early stages a defendant may not be aware of the full extent of the prosecution case.14 64 Merely pointing to the scope for further particulars will not necessarily avail a defendant, particularly in a case where, as here, the alleged offending, although general, adequately identified the nature and scope of the conduct targeted. There was and is no dispute that at an early stage the appellant’s laptop contained child exploitation material, some of which revealed offending concerning a child under the age of 14 years. Similarly, there was and is no dispute that the offending alleged in the second Information concerned the conduct alleged in respect of children of the ages alleged. 65 To this, the appellant contended before this Court that it was reasonable not to plead in circumstances where further charges were likely to be laid. The reason given was the risk that the further charges may be duplicitous. The clear answer to contentions such as these is that whether or not a defendant can reasonably be expected to plead will depend upon the offending alleged, the charges as framed, and the information then known to the defendant. 66 The prospect of further charges does not, without more, demonstrate that a defendant could not reasonably have been expected to plead at an early stage. Whatever the theoretical problems that might emerge in the event further charges are laid can be addressed when, and if, those further charges are ever laid. 14 R v Bahrami (2020) 137 SASR 327. -- 20 of 38 -- [2024] SASCA 146 The Court 17 67 In support of this part of the appellant’s case, reliance was placed on authorities such as Nguyen v The Queen,15 and Bechara v The Queen.16 Respectfully, neither of these cases are of assistance to the appellant. 68 In the case of Nguyen v The Queen, the Court was concerned with construing provisions in the Criminal Procedure Act 1921 (SA) and the Sentencing Act in order to determine whether there was only one committal appearance and how that was to be identified. The Court accepted that, depending upon the circumstances, the parties may agree, or the Court may order, that the committal appearance should be adjourned.17 That is not the issue raised on this case. Similarly, Bechara v The Queen was concerned with refusing permission to appeal an argument concerning a construction of s 40(3) which is quite different to the construction now advanced.18 69 Perhaps the most formidable impediment to the appellant’s success comprises the terms of the affidavit of his solicitor. In submissions, the appellant contended:19 The difficulty for the Appellant and his solicitor was not in relation to the strength of the prosecution case but what exactly was the prosecution case and who were the correct victims of each of those charges and what particulars applied to each of those victims. The prosecution submitted before the learned Sentencing Judge that Mr Walsh did not provide reasons for not pleading guilty … The learned Sentencing Judge not only had the benefit of written and oral submissions which set out those reasons, but also the Court had the benefit of Mr Morris’ comprehensive affidavit … 70 However, when one considers the solicitor’s affidavit, the most striking feature is the absence of any evidence of any difficulty in understanding the nature of the offending alleged or in advising on the scope to plead guilty to the offending alleged in the first and second Informations. Although detailed in content, the affidavit simply identifies the broad nature and content of the Informations and the procedural steps which were undertaken in the course of the police investigation. 71 Far from suggesting some difficulty in pleading earlier, the affidavit identified that further particulars were, or in some cases were not, later provided in the final Information. For example, the affidavit suggested a difference between count 1 in the first Information, and count 229 in the third, because the earlier pleaded a breach of s 63A(1), whereas the latter pleaded a breach of s 63A. There is, with respect, nothing at all in that point. 72 Moreover, the affidavit referred to count 8 in the second Information and count 120 in the third. It is clear that the additional detail provided in the third is simply the particularisation of the child’s name. Again, there is nothing in that. 15 Nguyen v The Queen (2022) 140 SASR 554 (Livesey P, Doyle JA and Stanley AJA). 16 Bechara v The Queen [2022] SASCA 37 (Kourakis CJ, Lovell and Doyle JJA). 17 Nguyen v The Queen (2022) 140 SASR 554, [49], [72]-[80] (Livesey P and Stanley AJA), [219]-[221] (Doyle JA). 18 Bechara v The Queen [2022] SASCA 37, [37]-[41] (Kourakis CJ, Lovell and Doyle JJA). 19 Written Submissions of the appellant dated 25 January 2024, p 25. -- 21 of 38 -- [2024] SASCA 146 The Court 18 At no stage did the appellant or his solicitor explain why the appellant could not have pleaded notwithstanding the absence of a particularised name. Moreover, there is no suggestion that the appellant could not have sought that kind of detail or discovered it for himself by inspecting the relevant equipment, if necessary under supervision, if that had truly been regarded as an impediment to an early plea. 73 Permission to appeal grounds 3, 4 and 5 should be refused. Appeal ground 6 – manifest excess 74 The suggestion under this ground that there was some specific error in the approach of the sentencing judge must be rejected. 75 Even where a mental impairment defence is not pressed, an offender’s mental impairment may still be relevant to an evaluation of the objective seriousness of the offending as well as an evaluation of an offender’s moral culpability,20 especially where it is demonstrated that the diagnosed condition of an offender affected the offender’s mental capacity at the time of the offending. 76 When that is done, that will usually be regarded as relevant to the determination of sentence.21 That should not, however, be undertaken separately from any analysis regarding the seriousness of the offending. As Martin J explained in R v Wiskich:22 In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced. 77 A stark example is provided by the case of Saffin v The Queen, where the applicant’s autism was regarded as being important to the determination of the facts upon which he was to be sentenced.23 In that case, following a nine-day trial, the applicant was found guilty by a jury of 13 counts of sexual assaults inflicted on a 19-year-old Aboriginal man during a period of three or four hours on one night. The applicant’s defence, that the conduct was consensual, was rejected. The finding was that the applicant’s persistent attacks involving oral and anal intercourse involved a high level of depravity.24 78 One of the grounds of appeal in Saffin v The Queen was that the applicant had been diagnosed with ASD and there was a psychologist’s report suggesting 20 Elturk v The Queen (2014) 239 A Crim R 584. 21 R v Sebalj [2006] VSCA 106, [21]; R v Wiskich [2000] SASC 64, [62] (Martin J, with whom Prior and Williams JJ agreed). 22 R v Wiskich [2000] SASC 64, [62] (Martin J): see also R v Monks (2019) 133 SASR 182, [35]-[37] (Doyle J,with whom Peek and Parker JJ agreed). 23 Saffin v The Queen [2020] NSWCCA 246 (Basten JA, Rothman and Price JJ). 24 Saffin v The Queen [2020] NSWCCA 246, [2] (Basten JA). -- 22 of 38 -- [2024] SASCA 146 The Court 19 that the applicant was unable to comprehend that the victim was not consenting.25 Basten JA reviewed in some detail the psychological evidence which was put forward on behalf of the applicant which, his Honour found, did not entirely reflect the evidence before the Court. For example, though some of the psychological evidence suggested a difficulty in “reading” non-verbal signs or in “reading” ambiguous or ambivalent communications, the evidence showed that the applicant had been socialising in a group with the victim without any difficulty associated with social contact and, more fundamentally, when the appellant later assaulted the victim, the victim gave a number of very clear and unambiguous responses which made it clear that he was not consenting. 79 Justice Basten observed:26 … being on the spectrum is well-described by the label applied; there are a range of features associated with the spectrum, some of which will apply to a particular individual, but others will not; some will operate for an individual in particular circumstances, but not in other circumstances; and a particular feature may be present, but in varying degrees of seriousness. In short, levels of functioning are disparate and diverse. It follows that the judge was entirely correct in determining how the particular diagnosis operated with respect to the applicant based on the evidence of the circumstances and the events of the night in question. 80 Although the sentencing judge had made findings favourable to the applicant, these “quite properly … ultimately carried little weight in his reasoning as to moral culpability”.27 Ultimately, the Court of Appeal rejected the proposition that there was any error in the approach taken to the treatment of ASD by the sentencing judge. 81 In relation to this ground in this case, the appellant again referred to his diagnosis of ASD. It is not necessary to repeat the earlier analysis of this condition and why her Honour was correct in finding that, though relevant, ASD did not operate to mitigate the appellant’s offending. It follows that, in this case, there was no relevant basis for a finding that there was a causal connection between the appellant’s high functioning ASD and the commission of the 230 offences to which he pleaded guilty. 82 When evaluating a contention that a sentence is manifestly excessive, it is of course insufficient for the appeal court to conclude that it may have come to a different decision or that the sentence is markedly different from sentences imposed in other cases.28 Before an appeal court can intervene, the appellant must 25 Saffin v The Queen [2020] NSWCCA 246, [3] (Basten JA). 26 Saffin v The Queen [2020] NSWCCA 246, [59] (Basten JA). See, to similar effect, the reasons of this Court in Murphy (a pseudonym) v The King [2023] SASCA 107, [111] (Livesey P, Lovell JA and Buss AJA) in the context of a trial on the issue of mental competence. 27 Saffin v The Queen [2020] NSWCCA 246, [63] (Basten JA). 28 Hili v The Queen (2010) 242 CLR 520, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Bugmy v The Queen (2013) 249 CLR 571, [24]. -- 23 of 38 -- [2024] SASCA 146 The Court 20 demonstrate that the sentencing judge arrived at a sentence that is unreasonable or plainly unjust.29 83 The appellant submitted that due weight was not given in this case to his general psychological profile and overseas military service. In addition, the appellant pointed to having achieved “model prisoner status” and that he had tutored inmates in business administration. He criticised the observation made by the sentencing judge that she hoped that the appellant would not impart to other inmates his considerable knowledge concerning information technology. This was said to have undermined a bona fide factor in mitigation. 84 The appellant also criticised the observation by the sentencing judge that the appellant’s stated lack of intention to meet with his victims was “some sort of mitigating factor”. 85 Again, it is necessary to state that there is no allegation nor any basis for an allegation that the sentencing judge made any specific error in connection with the exercise of her broad sentencing discretion. 86 Whilst the sentence imposed in this case is heavy, it was appropriately heavy given the serious and sustained offending by a perpetrator who must be taken to have cynically exploited a number of children for his own sexual gratification and notwithstanding the obvious risk that this might cause them harm. 87 It is, as was recently pointed out, necessary for the court to act firmly in response to offending of this kind:30 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 the prevailing standards of punishment reflect a hardening in community attitudes and increased maximum penalties for offending of this kind.31 88 Whilst the sentence is not manifestly excessive, the error made in connection with appeal ground 2 requires that this Court independently re-exercise the sentencing discretion. 89 We do so having regard to the matters earlier outlined, particularly the circumstances of the offending and the offender. It is not necessary to repeat what has been earlier outlined. We would adopt the approach taken by the sentencing judge to the notional sentences imposed, the reductions for the pleas of guilty and 29 House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ); Markarian v The Queen (2005) 228 CLR 357, [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 30 Brooker v The King [2024] SASCA 135, [88] (Livesey P, David JA and Bond AJA). 31 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). -- 24 of 38 -- [2024] SASCA 146 The Court 21 the utilisation of s 26 of the Sentencing Act. However, having done so, we are firmly of the opinion that no lesser sentence should in this case be imposed. 90 In those circumstances, relying on the approach laid out by the High Court in Kentwell v The Queen, where this Court concludes in the separate and independent exercise of its discretion that no different sentence should be passed, it is not required to re-sentence the appellant.32 Conclusion 91 Permission to appeal should be granted, as indicated, but the appeal should be dismissed. 32 Kentwell v The Queen (2014) 252 CLR 601, [35], [48]. -- 25 of 38 -- [2024] SASCA 146 The Court 22 SCHEDULE CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 1 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment MB 35% 2 years, 6 months 1 year, 7 months, 16 days 2 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment JG 35% 2 years 1 year, 7 months, 16 days 3 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment JG 25% 18 months 1 year, 1 month, 16 days 4 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment AG 35% 2 years, 3 months 1 year, 7 months, 16 days 5 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 6 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment AM 35% 2 years, 6 months 1 year, 7 months, 16 days 7 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment JG 25% 18 months 1 year, 1 month, 16 days 8 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 9 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment LP 35% 3 years, 3 months 2 years, 1 month, 11 days 10 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment JG 25% 18 months 1 year, 1 month, 16 days 11 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment JG 25% 18 months 1 year, 1 month, 16 days 12 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 13 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 14 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 15 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AM 25% 2 years, 3 months 1 year, 8 months, 8 days 16 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AM 25% 2 years, 3 months 1 year, 8 months, 8 days 17 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment TN 35% 3 years 1 year, 11 months, 13 days 18 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment TN 25% 2 years, 3 months 1 year, 8 months, 8 days -- 26 of 38 -- [2024] SASCA 146 The Court 23 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 19 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AM 25% 2 years, 3 months 1 year, 8 months, 8 days 20 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment HB 35% 2 years, 3 months 1 year, 5 months, 17 days 21 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment HB 25% 2 years 1 year, 6 months 22 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment CW 35% 2 years, 6 months 1 year, 7 months, 16 days 23 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 24 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment HB 25% 2 years 1 year, 6 months 25 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment HB 25% 2 years 1 year, 6 months 26 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AM 25% 2 years, 3 months 1 year, 8 months, 8 days 27 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 28 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment HB 25% 2 years 1 year, 6 months 29 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AM 25% 2 years, 3 months 1 year, 8 months, 8 days 30 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 31 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment AP 35% 2 years, 6 months 1 year, 7 months, 16 days 32 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 33 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment CW 25% 2 years 1 year, 6 months 34 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 35 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AP 25% 2 years 1 year, 6 months 36 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment CW 25% 2 years 1 year, 6 months 37 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AM 25% 2 years, 3 months 1 year, 8 months, 8 days -- 27 of 38 -- [2024] SASCA 146 The Court 24 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 38 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AP 25% 2 years 1 year, 6 months 39 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AP 25% 2 years 1 year, 6 months 40 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 41 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 42 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AP 25% 2 years 1 year, 6 months 43 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AP 25% 2 years 1 year, 6 months 44 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AM 25% 2 years, 3 months 1 year, 8 months, 8 days 45 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AM 25% 2 years, 3 months 1 year, 8 months, 8 days 46 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AP 25% 2 years 1 year, 6 months 47 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 48 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment TN 25% 2 years, 3 months 1 year, 8 months, 8 days 49 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AP 25% 2 years 1 year, 6 months 50 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment AC 35% 2 years, 3 months 1 year, 5 months, 17 days 51 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment GG 35% 2 years, 3 months 1 year, 5 months, 17 days 52 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months 53 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 54 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 55 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 56 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months -- 28 of 38 -- [2024] SASCA 146 The Court 25 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 57 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 58 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment TN 25% 2 years, 3 months 1 year, 8 months, 8 days 59 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 60 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 61 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 62 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 63 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 64 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 65 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 66 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 67 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 68 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 69 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 70 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 71 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment TN 25% 2 years, 3 months 1 year, 8 months, 8 days 72 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AP 25% 2 years 1 year, 6 months 73 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months 74 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 75 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days -- 29 of 38 -- [2024] SASCA 146 The Court 26 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 76 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment TN 25% 2 years, 3 months 1 year, 8 months, 8 days 77 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 78 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 79 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months 80 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment TN 25% 2 years, 3 months 1 year, 8 months, 8 days 81 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 82 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment JG 25% 18 months 1 year, 1 month, 16 days 83 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 84 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months 85 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 86 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 87 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 88 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 89 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 90 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 91 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 92 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 93 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 94 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months -- 30 of 38 -- [2024] SASCA 146 The Court 27 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 95 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 96 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 97 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 98 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 99 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 100 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 101 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 102 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 103 Dissemination of child exploitation material s 63(b) CLCA 10 years imprisonment 25% 12 months 9 months 104 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months 105 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 106 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 107 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 108 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment SP 35% 2 years, 6 months 1 year, 7 months, 16 days 109 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months 110 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment GG 25% 2 years 1 year, 8 months, 8 days 111 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 112 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 113 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment AH 35% 2 years, 3 months 1 year, 5 months, 17 days -- 31 of 38 -- [2024] SASCA 146 The Court 28 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 114 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AP 25% 2 years 1 year, 6 months 115 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 116 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 117 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 118 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 119 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment SP 25% 2 years 1 year, 9 months, 19 days 120 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 121 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 122 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 123 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 124 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months 125 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 126 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 127 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 128 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment SP 25% 2 years 1 year, 9 months, 19 days 129 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months 130 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 131 Dissemination of child exploitation material s 63(b) CLCA 10 years imprisonment 25% 12 months 9 months 132 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months -- 32 of 38 -- [2024] SASCA 146 The Court 29 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 133 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months 134 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 135 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 136 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 137 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 138 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment SP 25% 2 years 1 year, 9 months, 19 days 139 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 140 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 141 Dissemination of child exploitation material s 63(b) CLCA 10 years imprisonment 25% 12 months 9 months 142 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 143 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 144 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment GG 25% 2 years 1 year, 6 months 145 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 146 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment JB 35% 2 years, 6 months 1 year, 7 months, 16 days 147 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment JB 25% 2 years 2 years, 1 month, 16 days 148 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 149 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment JB 25% 2 years 1 year, 6 months 150 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment JB 15% 2 years, 10 months 2 years, 4 months, 28 days -- 33 of 38 -- [2024] SASCA 146 The Court 30 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 151 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment JB 15% 2 years, 10 months 2 years, 4 months, 28 days 152 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment JB 15% 2 years, 10 months 2 years, 4 months, 28 days 153 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 154 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 155 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment JB 15% 2 years, 10 months 2 years, 4 months, 28 days 156 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment JB 15% 2 years, 10 months 2 years, 4 months, 28 days 157 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 158 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 159 Dissemination of child exploitation material s 63(b) CLCA 10 years imprisonment 25% 12 months 9 months 160 Dissemination of child exploitation material s 63(b) CLCA 10 years imprisonment 25% 12 months 9 months 161 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 162 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment JB 15% 2 years, 10 months 2 years, 4 months, 28 days 163 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment JB 25% 2 years 1 year, 6 months 164 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment JB 15% 2 years, 10 months 2 years, 4 months, 28 days 165 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 166 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 167 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment JB 25% 2 years 1 year, 6 months -- 34 of 38 -- [2024] SASCA 146 The Court 31 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 168 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 169 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 170 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment JB 25% 2 years, 10 months 2 years, 1 month, 16 days 171 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment OC 15% 12 months 10 months, 7 days 172 Dishonest communication with a child s 139A(2) CLCA 10 years imprisonment NB 35% 2 years, 6 months 1 year, 7 months, 16 days 173 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment NB 25% 2 years 1 year, 6 months 174 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment NB 15% 2 years, 10 months 2 years, 4 months, 28 days 175 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 176 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment NB 15% 2 years, 10 months 2 years, 4 months, 28 days 177 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 178 Dissemination of child exploitation material s 63(b) CLCA 10 years imprisonment 25% 12 months 9 months 179 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 180 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment SP 25% 2 years 1 year, 9 months, 19 days 181 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 182 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 183 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment LP 25% 2 years, 3 months 1 year, 8 months, 8 days 184 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 185 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months -- 35 of 38 -- [2024] SASCA 146 The Court 32 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 186 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment NB 15% 2 years, 10 months 2 years, 4 months, 28 days 187 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment NB 25% 2 years 1 year, 6 months 188 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment SP 25% 2 years 1 year, 9 months, 19 days 189 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment NB 15% 2 years, 10 months 2 years, 4 months, 28 days 190 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment NB 15% 2 years, 10 months 2 years, 4 months, 28 days 191 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment JG 25% 18 months 1 year, 1 month, 16 days 192 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 193 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment NB 25% 2 years 1 year, 6 months 194 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment NB 15% 2 years, 10 months 2 years, 4 months, 28 days 195 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 196 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 197 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment NB 15% 2 years, 10 months 2 years, 4 months, 28 days 198 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 199 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment NB 25% 2 years 1 year, 6 months 200 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 201 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 202 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days -- 36 of 38 -- [2024] SASCA 146 The Court 33 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 203 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment NB 15% 2 years, 10 months 2 years, 4 months, 28 days 204 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 205 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AH 15% 2 years 1 year, 8 months, 13 days 206 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AM 25% 2 years, 3 months 1 year, 8 months, 8 days 207 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment NB 25% 2 years 1 year, 6 months 208 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 209 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AM 25% 2 years, 3 months 1 year, 8 months, 8 days 210 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 211 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment NB 25% 2 years 1 year, 6 months 212 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment NB 15% 2 years, 10 months 2 years, 4 months, 28 days 213 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 214 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment SP 25% 2 years 1 year, 9 months, 19 days 215 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 216 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 217 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment SP 15% 2 years 1 year, 8 months, 13 days 218 Production of child exploitation material - Aggravated s 63(a) - Aggravated - CLCA 12 years imprisonment SP 15% 2 years, 10 months 2 years, 4 months, 28 days 219 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 220 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months -- 37 of 38 -- [2024] SASCA 146 The Court 34 CHARGE NO. CHARGE SECTION MAXIMUM PENALTY VICTIM REDUCTION APPLICABLE NOTIONAL SENTENCE REDUCED SENTENCE 221 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 222 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment SP 15% 2 years 1 year, 8 months, 13 days 223 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 224 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 225 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 226 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AG 25% 2 years 1 year, 6 months 227 Production of child exploitation material - Basic s 63(a) - Basic - CLCA 10 years imprisonment AC 25% 2 years 1 year, 6 months 228 Communicating with a child for a prurient purpose s 63B(3)(b) CLCA 10 years imprisonment AH 25% 2 years 1 year, 6 months 229 Possession of child exploitation material - Aggravated s 63A - Aggravated - CLCA 7 years imprisonment 25% 18 months 1 year, 1 month, 16 days 230 Possession of child exploitation material - Basic s 63A - Basic - CLCA 5 years imprisonment 25% 14 months 10 months, 16 days -- 38 of 38 --