MCGREGOR (A PSEUDONYM) v THE KING [2026] SASCA 85

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DAVISON) DCCRM-25-014991 Applicant: MCGREGOR (A PSEUDONYM) Counsel: MR C EDGE WITH MS J RUNNEGAR- MULLINS - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: THE KING Counsel: MS S ATTAR WITH MS A SHATTOCK - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 10/06/2026 File No/s: SCCRM-25-031822 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. MCGREGOR (A PSEUDONYM) v THE KING [2026] SASCA 85 Judgment of the Court of Appeal (The Honourable Chief Justice Stein, the Honourable Justice S Doyle and the Honourable Justice Bleby) 30 July 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - GENERALLY Application for permission to appeal against sentence. The applicant pleaded guilty to seven child sexual offences, comprising: • one count of sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Count 20); • two counts of produce child exploitation material (‘CEM’), contrary to s 63(a) of the CLCA (Counts 21 and 25); • one count of knowingly be in possession of CEM, contrary to s 63A(1)(a) of the CLCA (Count 22); -- 1 of 12 -- • two counts of disseminate CEM, contrary to s 63(b) of the CLCA (Counts 24 and 27); • one count of obtain access to CEM, contrary to s 63A(1)(b) of the CLCA (Count 28). The victim of the applicant’s offending is his niece. On 21 July 2025, a judge of the District Court imposed a head sentence of 16 years’ imprisonment for all the offences, acting pursuant to s 26 of the Sentencing Act 2017 (SA). The applicant being a serious repeat offender by reason of this offending, the judge imposed the mandatory minimum non- parole period of four-fifths of the head sentence, being 12 years, nine months and 18 days. The applicant’s sole ground of appeal was that the head sentence was manifestly excessive. Held (by the Court), granting permission to appeal, allowing the appeal, setting aside the sentence and resentencing the applicant: 1. When the offending is considered together, and having regard to its duration and interlinked nature, a significant degree of concurrency was required in order to reach a sentence that was proportionate to that offending as a whole. 2. The head sentence of 16 years was disproportionate to the point of manifest excess. 3. The sentence is set aside and the applicant resentenced. Criminal Law Consolidation Act 1935 (SA) ss 50(1), 63(a), 63(b), 63A(1)(a), 63A(1)(b); Sentencing Act 2017 (SA) ss 26, 54, referred to. Brooker v The King [2024] SASCA 135; Cuong v The Queen [2021] SASCA 89; Dinsdale v The Queen (2000) 202 CLR 321; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Hili v The Queen (2010) 242 CLR 520; Lowndes v The Queen (1999) 195 CLR 665; Markarian v The Queen (2005) 228 CLR 357; R v Baker [2015] SASCFC 110; R v Beaumont (2023) 312 A Crim R 356; R v Berry [2024] SASCA 116; R v Camarinha [2018] SASCFC 118; R v Collins [2018] SASCFC 97; R v D (1997) 69 SASR 413, considered. -- 2 of 12 -- MCGREGOR (A PSEUDONYM) v THE KING [2026] SASCA 85 Court of Appeal – Criminal: Stein CJ, S Doyle and Bleby JJA 1 THE COURT: This is an application for permission to appeal against sentence. The applicant pleaded guilty to seven child sexual offences, comprising: • one count of sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Count 20); • two counts of produce child exploitation material (‘CEM’), contrary to s 63(a) of the CLCA (Counts 21 and 25); • one count of knowingly be in possession of CEM, contrary to s 63A(1)(a) of the CLCA (Count 22); • two counts of disseminate CEM, contrary to s 63(b) of the CLCA (Counts 24 and 27); • one count of obtain access to CEM, contrary to s 63A(1)(b) of the CLCA (Count 28). 2 On 21 July 2025, a judge of the District Court imposed a single sentence of 16 years’ imprisonment for all the offences, acting pursuant to s 26 of the Sentencing Act 2017 (SA). The applicant being a serious repeat offender by reason of this offending, the judge imposed the mandatory minimum non-parole period of four-fifths of the head sentence, being 12 years, nine months and 18 days. 3 The sole ground of appeal is that the head sentence was manifestly excessive. The circumstances of the offending 4 The victim was born in 2012. At the time of the offending, she was 10 years old. She lives with Autism Spectrum Disorder. She is non-verbal. She can communicate at a basic level by using single words as well as through a communication device or an iPad. 5 The applicant is the uncle of the victim, being the half-brother of the victim’s mother. At the time of the offending, he was 22 years old. The victim’s mother employed him to work in the family business. He would stay at their house for periods of time on this account. 6 The offending occurred in 2023. Six of the seven offences occurred within a period of weeks, when the applicant was staying in his sister’s home. Count 20 on the Information, sexual abuse of a child, incorporated two incidents at this home. First, on 2 April 2023, the applicant pulled down the victim’s pants and exposed her genitals. He positioned her so as to film her genital region closely. He also -- 3 of 12 -- [2026] SASCA 85 The Court 2 procured her to touch his exposed, erect penis. He video-recorded this conduct, making a two-minute and 56-second video. 7 Secondly, on 11 May 2023, the applicant touched the victim’s genital area and buttocks over her clothing and caused her foot to rub over his penis, over his clothing. He video-recorded this conduct also, producing four individual files containing CEM. 8 The five videos in total that the applicant made on 2 April and 11 May 2023 were the subject of Count 21, produce CEM. 9 Later on 11 May 2023, the applicant sent all five of those video files to a person online who identified as ‘Kripe’. That conduct was the subject of Count 24, disseminate CEM. 10 The applicant engaged in highly sexualised online discussions with ‘Kripe’, describing sexual activity in which he wished to engage with the victim. His online descriptions constituted CEM and were the subject of Count 25, produce CEM. 11 On 18 May 2023, the applicant received three files of Category 1 CEM from an unknown online user. This was the subject of Count 28, obtain access to CEM. On the same date, he disseminated those files to ‘Kripe’. This action was the subject of Count 27, disseminate CEM. He also received from ‘Kripe’ a link to a file containing CEM. This was also the subject of Count 28, obtain access to CEM. 12 Police searched the applicant’s parents’ house on 8 June 2024. The applicant was found to be in possession of 300 files of CEM across a laptop and a mobile phone. His possession of this material was the subject of Count 22, knowingly be in possession of CEM. 13 The applicant admitted the offending to police. He admitted to expressing, to a person online, fantasies of wanting to rape the victim but said that he would not have followed it through. He admitted that he knew the victim was autistic and non-verbal and that he took advantage of that, as she was unable to communicate with anyone. He said that in accessing the CEM that was found in his possession prior to the contact offending, he was acting out of curiosity. He said he had been attracted to 5-12-year-old females but was not sexually attracted to children anymore. 14 The applicant was born on the Eyre Peninsula and raised in a small country town. He was bullied by other children but otherwise had an uneventful childhood. Most of his post-school employment was with his family. In 2023, his sister offered him the opportunity to stay with her to work in the family business. She did this to help him become socialised and to have interests outside the family home. It was during this period that he committed six of the seven charged offences. -- 4 of 12 -- [2026] SASCA 85 The Court 3 15 The applicant’s isolated social life and limited sexual experience led him to viewing pornography. He started making connections online, where he was introduced to CEM. He became involved in chat rooms where participants would talk about exploitative content. He has no other criminal history. The sentencing 16 The judge considered that there was little to be said by way of mitigation of the offending. She took into account that the applicant was still a young man and that he had pleaded guilty. She considered that the offending was very serious. The fact that the victim was non-verbal and unable to complain or attract attention to the fact that she was being abused was an aggravating feature, as was the fact that the applicant chose her for that very reason. She identified that the paramount consideration in sentencing was the protection of the community and highlighted the importance of general deterrence. She accepted that the standard articulated in R v D,1 if not strictly applicable, nonetheless acted as a guide for the appropriate sentence to be imposed. 17 As already indicated, the judge imposed a single sentence of 16 years, acting pursuant to s 26 of the Sentencing Act. Consistently with her obligations under s 26(2a), she indicated the notional sentence she would have imposed in respect of each offence. The following table sets out the starting point the judge indicated for each offence, together with the reduction she applied on account of the guilty plea for each and the resulting notional sentence in each case: Count Maximum penalty Starting point Reduction applied Notional sentence 20 (Sexual abuse of a child) Life imprisonment 10 years 25 per cent Seven years and six months 21 (Produce CEM – videos of victim) 10 years’ imprisonment Four years 15 per cent Three years, four months and 25 days 22 (Knowingly be in possession of CEM) 12 years’ imprisonment Three years 35 per cent One year, 11 months and 13 days 24 (Disseminate CEM) 15 years’ imprisonment Five years 15 per cent Four years and three months 25 (Produce CEM – conversations) 15 years’ imprisonment Three years 25 per cent Two years and three months 27 (Disseminate CEM) 15 years’ imprisonment Three years 25 per cent Two years and three months 28 (Obtain access to CEM) 12 years’ imprisonment Two years and six months 35 per cent One year, seven months and 16 days 18 The judge then said: If these sentences were accumulated, that would be a sentence of imprisonment of just over 23 years. I consider that such a sentence would be excessive. I am going to impose one 1 (1997) 69 SASR 413. -- 5 of 12 -- [2026] SASCA 85 The Court 4 penalty for all offences pursuant to s.26 of the Sentencing Act. Taking into account the circumstances of the offending and your personal circumstances, including your age and your pleas of guilty, I consider a term of imprisonment of 16 years is appropriate. 19 The judge then set the non-parole period indicated earlier. She backdated the sentence to commence on 5 July 2024, which was when the applicant was arrested. The appeal 20 The principles applicable on a complaint of manifest excess are well understood.2 As the High Court explained in Dinsdale v The Queen:3 Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. 21 It is insufficient that the appeal court would have exercised its discretion differently from the way in which the sentencing judge did so.4 On a complaint of manifest excess, absent a complaint of specific error, it is necessary to show that the sentence was unreasonable or plainly unjust.5 This requires consideration of a number of factors, including the maximum penalty for the offence, the range of sentencing ordinarily imposed for the type of offending, the seriousness of the offending and the personal circumstances of the offender.6 22 While the challenge is to the ultimate sentence, and not to any step along the way, a consideration of the steps taken by the judge in reaching the final sentence can assist in understanding whether the final result is unreasonable or unjust. When a single sentence is imposed pursuant to s 26 of the Sentencing Act, those steps may not be so apparent. Nevertheless, indications such as the notional starting points may provide some assistance. Thus, for example, in R v Camarinha, the Court of Criminal Appeal observed:7 While there cannot be an appeal against a starting point, it is a critical step in arriving at the ultimate sentence to be imposed. It is the stage of the sentencing process at which comparison with the maximum penalty for the offence, and sentences imposed in other cases, is most readily made.8 The Director points to the starting point of six years imprisonment as demonstrating error. 2 See, e.g., Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J). 3 (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J). 4 Lowndes v The Queen (1999) 195 CLR 665 at [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). 5 Markarian v The Queen (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 6 R v Baker [2015] SASCFC 110 at [36] (Nicholson, Parker and Lovell JJ). 7 R v Camarinha [2018] SASCFC 118 at [57] (Kourakis CJ, Blue and Lovell JJ). 8 R v Collins [2018] SASCFC 97 at [47] (per Lovell and Doyle JJ). -- 6 of 12 -- [2026] SASCA 85 The Court 5 (Footnote in original.) 23 The starting points in the present case assumed some significance on the appeal, and in particular the starting point of 10 years that the judge adopted for the offence of sexual abuse of a child. The applicant complained that this was demonstrative, and likely in part causative, of the ultimate asserted error, on the basis that the guidance to be obtained from R v D9 was not applicable, having regard to the nature of the offending the subject of that charge. 24 Other statements by a sentencing judge, such as consideration given to concurrency or totality, may assist in a consideration of the overall proportionality of the sentence. Express consideration of the appropriateness of concurrency, including partial concurrency, has an advantage of exposing the extent to which subsequent offences are accredited with adding to the criminality of earlier offences. It thereby offers an insight into the extent to which proportionality is reflected throughout the sentencing process. However, a sentencing exercise under s 26 does not require this. In Brooker v The King, this Court said:10 The criticisms made by the appellant of the notional sentences imposed in this case for child sexual abuse under s 50 of the CLCA should likewise be rejected. The most important reason is that whether a sentence is manifestly excessive must be determined primarily by reference to the overall sentence, the total effective sentence, rather than by any notional sentence that might or might have been adopted by the sentencing judge as a starting point when determining the head sentence.11 Nonetheless, a starting point or notional sentence may help to identify where the sentencing court may have taken an erroneous view of the offending. An erroneous notional sentence may be suggestive of error, supporting a submission about manifest error in the overall head sentence.12 The degree of assistance derived from a notional sentence will depend on the circumstances of the case, including whether the sentencing judge identified the notional sentence, whether there are many or just a few notional sentences, and whether the sentencing judge exposed the extent to which considerations of concurrency and totality were taken into account in arriving at the overall sentence. (Footnotes in original.) 25 The applicant quite correctly did not suggest that the judge’s failure to refer to any progressive application of concurrency involved any error. His ultimate complaint is aimed squarely at the final head sentence. He accepted that no authority provided a useful comparison for the sentences imposed. He disputed that R v D13 provided guidance in respect of Count 20, sexual abuse of a child, as the offending did not involve sexual intercourse. He did not dispute that he was in 9 (1997) 69 SASR 413. 10 Brooker v The King [2024] SASCA 135 at [82]-[83] (Livesey P, David JA and Bond AJA). 11 Cuong v The Queen [2021] SASCA 89, [2]-[8] (Lovell and Bleby JJA), [60]-[62] (Livesey JA); Nguyen v The Queen (2022) 140 SASR 554, [131] (Livesey P and Stanley AJA), cf [197]-[198] (Doyle JA). The submission may lack utility, White v The Queen (2022) 141 SASR 398, [58] (Lovell, Bleby and David JJA). 12 Wakefield v The King [2023] SASCA 95, [55] (Livesey P, Lovell and David JA); Warner v The King 142 SASR 275, [109] (Livesey P). 13 (1997) 69 SASR 413. -- 7 of 12 -- [2026] SASCA 85 The Court 6 a position of trust with respect to the victim, in that he was her uncle who resided under the same roof. 26 The terms of the guideline expressed by Doyle CJ in R v D14 with respect to the predecessor section to s 50 of the CLCA, s 74, are as follows:15 In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower. When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment. 27 Chief Justice Doyle reached this guideline having earlier articulated a general approach to sentencing under the section:16 In my opinion, the approach to be taken under s 74, in a case like the present one, is this. The court should identify the different offences involved and the maximum punishment that they attract. In the present case the offences are unlawful sexual intercourse with a child above the age of 12 years, that attracts a maximum punishment of seven years imprisonment, and indecent assault on a child above the age of 12 years, that attracts a maximum punishment of eight years imprisonment. It is not necessary to identify the number of offences committed with any precision, although if that can be done readily, there is no reason why it should not be done. An approach which requires one to identify the number of offences with precision, would simply reintroduce the very problem at which s 74 is aimed. It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences, as distinct from under s 74, and on the basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct. In this way, the court will still have regard to the duration of the offending, the seriousness of the offences involved, and the frequency of the offending. But the court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima. 28 The maximum penalties for the underlying offences have since increased considerably, but there was no suggestion on the appeal that the R v D guideline should be revisited. Thus, for example, the offence of indecent assault, where the victim was under the age of 14 years at the time of the offence, now attracts a maximum penalty of 15 years’ imprisonment. The point that the applicant made, however, is that the 12- and 10-year guidance given in R v D was specifically 14 (1997) 69 SASR 413. 15 R v D (1997) 69 SASR 413 at 424. 16 R v D (1997) 69 SASR 413 at 420. -- 8 of 12 -- [2026] SASCA 85 The Court 7 directed to where the underlying offending was unlawful sexual intercourse, where here, it was indecent assault. 29 So much may be accepted. That does not reduce R v D to having no guidance value at all. Rather, in drawing guidance, it is necessary to have regard to the fact that R v D was expressed specifically to apply to where the underlying offence was unlawful sexual intercourse. As Doyle CJ observed in the passage quoted earlier, it is necessary to identify the underlying offending involved and the maximum sentences they attract. 30 Then, as this Court observed in R v Berry:17 At the same time, this Court has repeatedly emphasised the flexibility that is appropriate, indeed required, in applying the guidance provided by R v D.18 In each case, it will be necessary to have regard to considerations such as the nature and frequency of the offending; the duration of the period over which it occurred; the relationship between the offender and victim, including the extent to which the offender was in a position of trust and authority, or otherwise groomed or exploited the victim; the age and vulnerability of the victim; the age disparity between the offender and victim; whether the offending involved any use of force or coercion; the impact of the offending upon the victim; and the personal circumstances of the offender. (Footnote in original.) 31 Here, the underlying offending of the s 50 offence comprised two instances of indecent assault, each of which attracted a maximum penalty of 15 years.19 This reflects the fact that indecent assault of a child is an offence of sexual violence.20 That maximum penalty informs the seriousness of the offending.21 It does not warrant discounting or downgrading the seriousness of the inferred psychological harm to the victim.22 32 Accepting the continuing general relevance of the guidance provided by R v D, it is then appropriate to consider the integers of the s 50 offence. 33 The underlying indecent assaults occurred on two occasions, within a few weeks. They were, nonetheless, serious. The applicant was in a clear position of trust with respect to the victim. He was her uncle and had been invited into her home to stay. Moreover, the victim was in a position of special vulnerability, being non-verbal with Autism Spectrum Disorder. She was unable to communicate what 17 [2024] SASCA 116 at [69] (S Doyle JA, Bleby JA and Hall AJA). 18 For example, Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [54]-[56] (Livesey P, Doyle and David JJA); Warner v The King (2022) 142 SASR 275 at [80] (Livesey P), [123] (Doyle JA); R v Bradley [2024] SASCA 56 (Lovell, Bleby and David JJA). 19 Sentencing Act 2017 (SA) s 56(1)(d). 20 See R v Beaumont (2023) 312 A Crim R 356 at [49] (Livesey P, Lovell and Bleby JJA), quoting R v Friesen [2020] 1 SCR 424 at [147]. 21 The maximum penalty for an offence of unlawful sexual intercourse with a person under the age of 14 years is life imprisonment. 22 R v Beaumont (2023) 312 A Crim R 356 at [37] (Livesey P, Lovell and Bleby JJA), quoting R v Friesen [2020] 1 SCR 424 at [144]. -- 9 of 12 -- [2026] SASCA 85 The Court 8 was happening to her. Further, the applicant knew this and chose to commit the offences against her for that very reason. 34 The applicant submitted that the offending was opportunistic, rather than planned, in that the touching commenced opportunistically when the victim had run into his bedroom to get him to play on the trampoline. In circumstances where he accepted that he chose to offend against the victim because of her inability to complain, chose to video-record the offending, and committed a further underlying offence on another occasion, we give little to no weight to the only sense in which the offending could be said to have been ‘opportunistic’. 35 The applicant referred, for comparative purposes, to Edmonds (a pseudonym) v The Queen (‘Edmonds’).23 This case concerned, in part, the abuse of a child ‘C’, who was on occasion entrusted to the care of the applicant. The applicant would enter her room and touch her breasts under her shirt and on other occasions, rub her arms and put her hand near his penis. C later disclosed the offending. The Court in that case, on the applicant’s appeal against sentence (which also concerned more serious offending against other children) indicated that the judge’s starting point of six years for the offending against C (on a charge under s 50 of the CLCA) was within the range of appropriate penalties.24 The applicant was 70 at the time of sentencing and in poor physical health. The Court, having determined that the whole sentence (taking into account the other offending) was manifestly excessive, adopted a starting point of five years in respect of the offending against C, when resentencing.25 36 Insofar as any comparison can be drawn with the present offending, the offending against C in Edmonds continued for two years, as compared with two occasions within a few weeks in the present case. However, the victim in the present case was severely vulnerable. No direct comparison can be made. Indeed, neither the applicant nor the Director was able to locate any authority that was truly comparable. 37 Bringing these considerations together, there can be no doubt that the starting point of 10 years for Count 20 was high. While it is not necessary to determine whether, as a matter of law, it was manifestly excessive, we are inclined to think that it was. 38 The applicant also submitted that the other starting points were high, pointing in particular to the starting point of three years for Count 22 (knowingly be in possession of CEM). However, he did not submit that they were manifestly excessive, just that they sat at the ‘upper end’ of the available ranges. 39 As indicated earlier, once the judge had set out the notional starting points and applied the discounts, she indicated that simply to accumulate them would 23 [2022] SASCA 11. 24 Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [58] (Livesey P, S Doyle and David JJA). 25 Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [76] (Livesey P, S Doyle and David JJA). -- 10 of 12 -- [2026] SASCA 85 The Court 9 result in a sentence of just over 23 years, which she considered would be excessive. She then imposed the single sentence of 16 years pursuant to s 26 of the Sentencing Act. The applicant was critical of this step in the process, submitting that a sentence of 23 years should never have been in contemplation and for the judge even to have done so injected an air of ‘unreality’ into the process. 40 We do not accept this criticism. In Cuong v The Queen,26 the plurality explained that an accumulation of starting points might, or might not, provide a useful tool for a sentencing judge in assessing the proportionality of a proposed final sentence. While it is not for parties on appeal to construct an accumulation that did not form part of the judge’s methodology,27 it is not an error for the judge to note what the accumulation of several starting points would amount to:28 Insofar as any starting point is relevant to assessing the appropriateness of a sentence structured in this way, that is, as a ‘critical step’ in arriving at the ultimate sentence, in our view the relevant starting points in this case are the separate starting points imposed in respect of each offence. These provide the points of comparison contemplated by the Court in Camarinha. By contrast, the period of 18 years in the present case is a construct only, not a starting point adopted by the sentencing judge. It was open to the judge, as part of the process of instinctive synthesis, to identify the accumulation of 18 years as a reference point. It would not have been an error to do so. For the reasons that follow, the utility of that reference point for the purposes of the appeal would depend on the steps he then took. 41 The applicant was on stronger ground in submitting that the factual overlap across the charges in this case warranted a significant degree of concurrency. As he submitted, Counts 20, 21, 24 and 25 arose from the same two occasions of abuse. The filming was part of the abuse. The dissemination was of those same videos. The subsequent production offence, Count 25, comprised a degrading commentary to ‘Kripe’ about the victim, following the applicant having sent ‘Kripe’ the videos. This offending occurred between 2 April and 11 May 2023. 42 Counts 27 and 28 were committed on 18 May 2023. The applicant received CEM, sent it on to ‘Kripe’ and received a file from ‘Kripe’. 43 The applicant accepted that the separate count of possession, Count 22, should be viewed as a completely separate incursion. 44 We accept the applicant’s submission that the offending, as a whole, notionally warranted a significant degree of concurrency of penalties. Of course, it may be observed that having notionally accumulated the sentences to 23 years after having given discounts for the guilty pleas, the judge necessarily incorporated an allowance for concurrency and/or totality in imposing a single head sentence of 16 years. 26 [2021] SASCA 89. 27 Cuong v The Queen [2021] SASCA 89 at [6] (Lovell and Bleby JJA). 28 Cuong v The Queen [2021] SASCA 89 at [7] (Lovell and Bleby JJA). -- 11 of 12 -- [2026] SASCA 85 The Court 10 45 Accepting that this was very serious offending, and bringing all these considerations together, including the applicant’s age (22 at the time of the offending and 25 at sentencing), personal circumstances and absence of criminal antecedents, in our view the sentence of 16 years was disproportionate to the point of manifest excess. Two factors reinforce this conclusion. First, the starting point for Count 20, the s 50 offence, was extremely high having regard to the nature and duration of the offending. We reach this view acknowledging the particular vulnerability of this victim. 46 Secondly, with the exception of Count 22, when the offending is considered together, and having regard to its duration and interlinked nature, a significant degree of concurrency was required in order to reach a sentence that was proportionate to that offending as a whole. 47 We grant permission to appeal, allow the appeal, set aside the sentence and resentence the applicant. Resentencing 48 On resentencing, we indicate the same notional head sentences and discounts for guilty pleas in respect of each offence as those indicated by the sentencing judge. That is with the exception of Count 20, sexual abuse of a child contrary to s 50 of the CLCA. In respect of that offence, we indicate a notional starting point of eight years, which we reduce by 25 per cent for the guilty plea to six years. 49 Pursuant to s 26 of the Sentencing Act, we impose a single sentence of 12 years in respect of all the offending. The applicant being a serious repeat offender, it is necessary to impose a non-parole period of not less than four-fifths of the head sentence, pursuant to s 54 of the Sentencing Act. We fix a non-parole period of nine years, seven months and six days. We backdate the sentence and non-parole period to commence on 5 July 2024, when the applicant was taken into custody. -- 12 of 12 --