Burgoyne v The King - [2024] SASCA 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BURGOYNE v THE KING
[2024] SASCA 61
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
16 May 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appeal against sentence.

The appellant pleaded guilty to two counts of unlawful sexual intercourse, and two counts of production of child exploitation material. He was sentenced to an effective head sentence of four years and nine months, with a non-parole period of three years and two months.
In November 2021, the complainant moved to Port Lincoln to reside in a Department for Child Protection independent living facility. During January 2020 and November 2021, the complainant moved residences several times and had commenced illicit drug use.
The complainant met the appellant shortly after moving to Port Lincoln. They would meet regularly with another male and use methylamphetamine together. The appellant would inject the complainant with methylamphetamine.
At the time of the offending, the complainant was 15 years old, and the appellant was 45.

The four counts of offending took place on the same day. The first offending occurred in a car, being unlawful sexual intercourse with the appellant filming the sexual activity on the complainant’s phone. The second set of offending took place less than two hours later in a bedroom with the appellant again filming the activity on the complainant’s phone.
The core ground of appeal was that the learned sentencing judge was led into error, having been provided with the incorrect maximum penalties at sentencing submissions. The identified maximum penalty put forward by the prosecution was 15 years for each offence. While this reflected correctly ss 49(3) and 63(a) of the Criminal Law Consolidation Act 1935 (SA) at the time of sentencing, at the time of the offending the maximum applicable penalty was 10 years’ imprisonment for each count.
Held (by the Court) granting permission to appeal, allowing the appeal and resentencing the appellant:
1.The misapprehension of the maximum penalty for each offence was a material error.
2.It is appropriate to impose a single sentence pursuant to s 26 of the Sentencing Act 2017 (SA).
3.The appellant is resentenced to an effective a head sentence of four years, one month and 13 days, with a non-parole period of two years and eight months. Both the head sentence and non-parole period are backdated to commence on 12 February 2022.

Sentencing Act 2017 (SA) s 26; Criminal Law Consolidation Act 1935 (SA) ss 49(3), 63(a), referred to.
Kentwell v The Queen (2014) 252 CLR 601; Richardson v Police [2009] SASC 297; R v Carbone & Ors [2012] SASCFC 34; R v Parisi (2003) 86 SASR 183; R v Nguyen [2007] SASC 83; Kentwell v The Queen (2014) 252 CLR 601; R v D (1997) 69 SASR 413; R v Seymour (a Pseudonym) [2024] SASCA 41; R v Lian [2023] SASCA 122; R v Urch [2024] SASCA 28; R v Turvey (2017) 127 SASR 425, considered.

BURGOYNE v THE KING
[2024] SASCA 61
Court of Appeal – Criminal: Livesey P, Bleby and David JJA

THE COURT: This is an appeal against sentence. The grounds of appeal, while variously expressed, focus on a complaint that the sentencing judge was provided with and proceeded on the basis of incorrect maximum penalties for the offences to which the appellant pleaded guilty. That error being conceded, this Court’s power to intervene is enlivened. It is necessary for the Court to resentence the appellant unless, in the separate and independent exercise of its discretion, it concludes that no different sentence should be passed.[1]
[1] Kentwell v The Queen (2014) 252 CLR 601 at [35].
Background
The appellant was sentenced for the following offences:
·unlawful sexual intercourse (Counts 2 and 4) contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The maximum penalty for each of these offences was imprisonment for 10 years; and
·produce child exploitation material (Counts 3 and 6) contrary to s 63(a) of the CLCA. The maximum penalty for each of these offences was imprisonment for 10 years.
In late November or early December 2021, the appellant met the complainant. The complainant, who was 15 years old, was living in a Department for Child Protection (‘DCP’) independent living facility. She was a user of methylamphetamine, as was the appellant. The complainant and the appellant would consume methylamphetamine together with at least one other friend.
On 15 December 2021, the appellant, the complainant and another man used methylamphetamine intravenously together. The appellant injected the complainant with methylamphetamine. The events the subject of Counts 2 and 3 on the information then occurred in a car. The appellant was sitting in the front passenger seat of a car and the complainant was in the footwell. The complainant performed fellatio upon the appellant and the appellant filmed the incident.
Later the same day, the appellant was in a bedroom with the complainant and another man. The complainant performed fellatio on the appellant and then on the other man. The appellant filmed both acts of fellatio, again with the complainant’s phone. The act of fellatio on the appellant and the appellant’s filming were the subject of Counts 4 and 6 on the information.
As noted above, at the time of the offending, the complainant was 15 years old. The appellant was 45.
The appellant was arrested on 12 February 2022 and has remained in custody since that time. There is no victim impact statement in respect of the offending. The complainant died by suicide in June 2022.
The appellant’s offender history dates back to 1994. It includes a number of offences of dishonesty for which the appellant was imprisoned. The first of these is recorded as having been in 1995. There was further dishonesty offending in 2001. The appellant was convicted of common assault on a member of his own family in 1998. Between 2014 and 2017 he was convicted on five occasions of contravening the terms of an intervention order.
The Court received a psychological report from a clinical psychologist, Ms Susan Heinrich. That report sets out a personal history of the appellant characterised by disadvantage. The appellant was born in Port Lincoln in 1976. He never met his father and in 2002 discovered that his father had died. That loss has stayed with him. The appellant’s mother drank alcohol, and the appellant was often looked after by his mother’s older sisters. He has maintained a positive relationship with his mother.
When the appellant was five years old, his mother partnered with his stepfather. His stepfather was abusive and would assault the appellant. He also abused alcohol. The appellant maintains resentment about the treatment he received when he was young, notwithstanding that his stepfather went on to become a priest. The appellant was sexually abused on one occasion by an uncle when he was seven or eight years old.
The appellant was raised with four half siblings who were the product of the partnership between the appellant’s mother and stepfather. He had a good relationship with his half siblings and would often provide care for his sister. Since then, three of his siblings have died. The appellant has seven children by several relationships, one of whom has died. The appellant has been in several relationships, the longest of which lasted for 22 years. That relationship broke up not long before the present offending. The appellant has had periods of alcohol dependence. He stopped abusing alcohol when he took up using methylamphetamine five or six years ago.
Ms Heinrich described the appellant as having met the criteria for polysubstance use disorder, prolonged grief disorder, post traumatic stress disorder and borderline personality disorder. The appellant does not have many risk factors generally associated with sex offending. His capacity for rehabilitation depends on his mental health improving and his ability to resist consuming drugs.
The sentence
The sentencing judge characterised the offending, correctly, as ‘serious offending by you at the age of 45 against a very vulnerable 15-year-old girl’. He identified that each of the offences carried a maximum penalty of 15 years imprisonment. That was an error. It appears that the source of this error was the prosecution’s summary of proposed factual basis for sentencing. The identified maximum penalty of 15 years for each offence was correct as at the date of sentencing, having been the subject of amendments to ss 49(3) and 63(a) of the CLCA on 1 October 2022. However, as at the date of the offending, the maximum penalty in each case was 10 years.
Having thereby incorrectly characterised the maximum penalty for each offence, the sentencing judge determined to impose a single sentence of imprisonment for all four offences. He indicated that were it not for the appellant’s guilty pleas, he would have sentenced the appellant to five years’ imprisonment. He reduced that by five per cent to four years and nine months. He fixed a non‑parole period of three years and two months and backdated both the head sentence and non-parole period to 12 February 2022, when the appellant was taken into custody.
The appeal
The notice of appeal contains three grounds of appeal:
1.The judge was led into error, having been provided with the incorrect maximum penalties at sentencing submissions, causing a sentencing error.
2.The judge incorrectly sentenced the appellant on the basis that the maximum penalty for both relevant offences was 15 years imprisonment.
3.The sentence imposed is manifestly excessive.
The complaint in Ground 1 effectively feeds into the complaint in Ground 2. Ground 2 is directed towards the effect of the misstatement of the applicable maximum penalties. The cause of that error, which the Director acknowledged, does not add to the analysis required by Ground 2. The appellant did not pursue this as a separate ground at the hearing.
The complaint of manifest excess in Ground 3 does not appear to rely on any matter other than the fact that the maximum penalties were misstated. It follows that while this is a standalone ground, it will necessarily be overtaken by the question of whether this Court should resentence, given the conceded process error.
For that reason, it is appropriate to focus on Ground 2.
The Director accepted that a misstatement or misapprehension by a sentencing judge of the applicable maximum penalty for one or more offences is a process error that can warrant a sentence being reviewed on appeal. It may affect the starting point of a particular sentence so as to render it inappropriate.[2] Where a single sentence is passed using s 26 of the Sentencing Act 2017 (SA) (‘Sentencing Act’), a misstated maximum penalty may create an unconscious perception that the overall offending is more serious.[3] In R v Parisi,[4] the Full Court observed that where a maximum penalty was misstated for some offences of a number in respect of which a single penalty was imposed, it was not possible to determine how the judge arrived at the ultimate sentence. In particular, it could not be known what part of the head sentence related to the counts for which the maximum was misstated. The Court concluded that it was necessary to set aside the sentence and exercise the sentencing discretion afresh.[5]
[2]     Richardson v Police [2009] SASC 297 at [9] (White J).
[3]     R v Carbone & Ors [2012] SASCFC 34 at [51].
[4] (2003) 86 SASR 183.
[5]     R v Parisi (2003) 86 SASR 183 at [20].
In the present case, the misstatement of the maximum penalty for each offence was a material error. It is appropriate to consider the sentence afresh.[6] However, if this Court concludes, in the separate and independent exercise of its discretion, that no different sentence should be passed, it would not be required to resentence.[7]
[6] R v Nguyen [2007] SASC 83 at [11] (Doyle CJ, Gray and David JJ agreeing).
[7] Kentwell v The Queen (2014) 252 CLR 601 at [35]; [48].
This is not a case where R v D can be said to be directly applicable.[8] Nevertheless, this was serious offending by a 45-year-old man against a 15‑year‑old girl. As the Director submitted, many of the same considerations which inform the guideline in R v D remain relevant to child sexual offences of any kind. Sexual offending causes serious harm against children, often with prolonged lifelong effects on the child. The offences and their maximum penalties reflect the strong societal need to protect children and to deter potential child sex offenders. The focus of sentencing must always be, primarily, the protection of children from the long-term suffering caused by sexual offending.[9]
[8] (1997) 69 SASR 413. Compare R v Seymour (a Pseudonym) [2024] SASCA 41 at [47]-[49].
[9] R v Lian [2023] SASCA 122 at [101] (Kourakis CJ, Lovell and Doyle JJA agreeing).
The Director accepted that there is no sentencing guideline for the offences of producing child exploitation material.[10] Deterrence and the protection of children are important sentencing considerations with little weight being given to an offender’s prior good character.[11]
[10] R v Urch [2024] SASCA 28 at [28].
[11] R v Turvey (2017) 127 SASR 425 at [126]-[129]; [133]; [134].
In this case, the child exploitation material consisted of two files, recorded on the complainant’s phone. There was no evidence that the footage was intended for sale or distribution or that it was otherwise disseminated. It was not produced against any background of evidence of the appellant having a more general interest in child exploitation material.
Nevertheless, as the respondent submitted, it does not follow that deterrence, protection of children and protection of the community had no role to play in formulating a sentence. The child exploitation material in question constituted the appellant filming himself engaged with a 15-year-old girl in an act of sexual intercourse in each case. The filming constituted a further victimisation of the complainant and rendered his offending more serious. The two acts of sexual intercourse and filming occurred at separate times on the one day and in separate locations.
The complainant was a vulnerable child in very difficult personal circumstances. She had a chaotic personal life, characterised by a lack of close familial support and appropriate adult supervision. When she was supervised, she appeared unable to adhere to any regime, leaving her susceptible to negative influence by others. Her living conditions had changed frequently, and she had recently transitioned to a DCP independent living facility. Her father had died suddenly, an event with which she was not coping well. She was struggling with long-standing illicit drug use and addiction issues. The complainant and the appellant had consumed methylamphetamine together on the day of the offending.
The appellant was, at the very least, aware of the chaotic and unsupervised life of the complainant and her frequent use of drugs. He had on various occasions used drugs together with her and assisted her in purchasing or acquiring drugs. These matters were not the subject of any charged offences, but they constituted relevant background context to the offending.
The appellant had expressed remorse and did eventually plead guilty. His pleas occurred against the background of the existence of footage of him committing the offences. In a letter of apology, he acknowledged his actions were selfish and caused emotional pain to the complainant and her family. He has expressed feeling sorry for his actions toward the complainant and in respect of the fact that she had since died. He acknowledged the pain he has caused his family and expressed a preparedness to rehabilitate.
Nevertheless, as the respondent observed, Ms Heinrich considered that the appellant’s offending appears to have been driven primarily by his tendency to engage in impulsive behaviours, amplified by his own substance abuse. There also remains some doubt about his level of insight. The appellant told Ms Heinrich that he was not thinking straight because of his drug use and that the complainant would ‘shout’ him drugs. This suggests, to some degree, a tendency to diminish his responsibility for the offending. Nevertheless, he did report to Ms Heinrich deep regret for his actions.
The appellant’s personal circumstances are summarised above. He is a person of aboriginal descent. He suffered neglect and disadvantage as a child, with past incidences of physical and sexual abuse. These matters are relevant but must nonetheless be balanced against the other relevant sentencing considerations and, in particular, the deterrent and protective purposes of sentencing for offences of this nature.
Taking the above matters into account, it is necessary to approach the question of resentencing from the starting point of maximum penalties of 10 years for each offence, rather than 15. Those maxima establish a significantly different framework for sentencing in this case. It is notable that the sentencing judge’s starting point of five years, while applied to a total of four offences, represented half of the actual maximum penalty for each offence, rather than the assumed one third. That is not to say that the sentence should necessarily be reduced by the same proportion. However, having regard to the actual maxima and the matters referred to above, we would not impose the same sentence. It is necessary to resentence the appellant.
Resentencing
Like the sentencing judge, we would impose a single sentence pursuant to s 26 of the Sentencing Act. However, in our view it is appropriate to characterise Counts 2 and 3, the events in the car, as having been committed on a different occasion from that of Counts 4 and 6. For that reason, it is necessary, pursuant to s 26(2a) of the Sentencing Act, to indicate the sentence that we would have imposed in respect of each offence.
We would have set a starting point of three years’ imprisonment for each of Counts 2 and 4. We would have set a starting point of two years’ imprisonment for each of Counts 3 and 6. We would have allowed a significant degree of concurrency in respect of these offences. Counts 2 and 3 were committed at the same time, as were Counts 4 and 6. Further, the two sets of offending occurred within a period of less than two hours.
Proceeding under s 26, we set a starting point of four years and four months’ imprisonment. We reduce that by five per cent on account of the appellant’s late guilty pleas. That results in a head sentence of four years, one month and 13 days. We fix a non-parole period of two years and eight months. The head sentence and the non-parole period are backdated to commence on 12 February 2022, when the appellant was taken into custody.