Edmonds (A Pseudonym) v The Queen - [2022] SASCA 11

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
EDMONDS (A PSEUDONYM) v THE QUEEN
[2022] SASCA 11
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
24 February 2022
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 ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - GENERALLY
Application for permission to appeal and appeal against sentence.
The applicant pleaded guilty to three counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The victims of his offending were his three step-granddaughters (A, B, and C).
For his offending in relation to A and B, the sentencing Judge imposed a sentence of nine years imprisonment (from a head sentence of 12 years, discounted by 25 per cent on account of his plea of guilty for each offence). For the offending against C, the applicant was sentenced to four years and six months imprisonment (from a head sentence of six years, discounted by 25 per cent on account of his plea of guilty). The sentencing Judge ordered that these three sentences be served cumulatively on the basis that each was a separate course of offending. That sentence, of 22 years and six months, was reduced to 18 years through an application of the principle of totality on the ground the sentence would otherwise be crushing.
Given that the applicant was a serious repeat offender, the sentencing Judge fixed a non-parole period of 14 years, four months and 25 days, being four-fifths of the sentence as required under s 54(1)(b) of the Sentencing Act 2017 (SA).
The applicant seeks permission to appeal against his sentence on the singular ground that it was manifestly excessive, both generally and in that the sentencing Judge did not consider the minimum non-parole period prescribed under the Sentencing Act when determining the appropriate head sentence.
Held, per the Court, granting permission to appeal and allowing the appeal:
1. A sentencing court is required by s 11(4)(a) of the Sentencing Act to determine the head sentence for an offence without having regard to any prescribed mandatory minimum non-parole period in respect of the offence. The imposition of a mandatory minimum non-parole period is not a basis to impugn the head sentences.
2. The head sentence was nevertheless manifestly excessive.
3. The sentence is set aside, and the appellant resentenced.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50(1); Sentencing Act 2017 (SA) ss 10(1), 11(4), 26, 28(5), 54(1), 54(2); Criminal Law (Sentencing) Act 1988 (SA) s 10(1a); Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) s 5, referred to.
R v D (1997) 69 SASR 413; R v Palmer [2016] SASCFC 34; DES v The Queen [2020] SASCFC 32; Ellis v The Queen [2021] SASCA 103; R v McIntyre (2020) 138 SASR 17; Day v The Queen [2021] SASCA 38; Ndreka v The Queen [2021] SASCA 11; R v Morse (1979) 23 SASR 98; Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; Glade v The Queen [2020] SASCFC 83; R v MJJ; R v CJN (2013) 117 SASR 81; Musgrave v State of Western Australia (2021) 289 A Crim R 17; R v W, PL [2017] SASCFC 119; Giordimania v The Queen [2020] SASCFC 28; Lane v The Queen [2020] SASCFC 82; R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276; R v Smoker (2016) 126 SASR 201; R v E, AD (2005) 93 SASR 20; R v Scott [2017] SASCFC 96; Attorney-General (SA) v Tichy (1982) 30 SASR 84; R v Copeland (No 2) (2010) 108 SASR 398; R v Culley (2019) 134 SASR 92; R v H, GJ (No 2) [2014] SASCFC 102; R v Harvey (No 2) [2014] SASCFC 106; R v Wooldridge (2015) 123 SASR 422; R v B, RP [2019] SASCFC 9, considered.

EDMONDS (A PSEUDONYM) v THE QUEEN
[2022] SASCA 11
Court of Appeal – Criminal: Livesey P, Doyle and David JJA

THE COURT: The applicant pleaded guilty to three counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The maximum penalty for each offence is imprisonment for life. The victims of his offending were his three step-granddaughters, referred to by the sentencing Judge as A (count 1), B (count 2) and C (count 3).
In relation to each of counts 1 and 2, the sentencing Judge started with a head sentence of 12 years imprisonment. He reduced both of these sentences by 25 per cent to nine years imprisonment on account of the applicant’s pleas of guilty. In relation to count 3, his Honour started with a head sentence of six years imprisonment. This was reduced by 25 per cent to four years and six months on account of the applicant’s plea of guilty.
The sentencing Judge ordered that the three sentences be served cumulatively, on the basis that there were three victims and that each count involved a separate incursion into crime. That resulted in a total notional head sentence of 22 years and six months. The sentencing Judge reduced this to 18 years through an application of the principle of totality.
The applicant was a serious repeat offender. In accordance with s 54(1)(b) of the Sentencing Act 2017 (SA), the sentencing Judge fixed a non-parole period of 14 years, four months and 25 days (being the mandatory minimum provided for under that subsection of four-fifths of the head sentence).
The applicant seeks permission to appeal on a single ground, namely that the sentence was manifestly excessive.
Circumstances of the offending
As mentioned, the victims of the applicant’s offending were his three step-granddaughters (A, B and C), being the biological grandchildren of his wife.
In relation count 1, the applicant abused A when she was between the ages of 10 and 15 (from 2014 – 2019). A’s first memory of the applicant inappropriately touching her was in May 2014, when the applicant came into A’s bedroom, knelt on the floor beside her bed, and rubbed his hand up and down her back and over her bottom and thigh. On this occasion, the applicant did not place his hand under her shorts, however he did place his hand under her shirt so as to touch her back, telling her, ‘you can’t tell anyone I’m doing this or I will get into trouble’. He continued to do this on weekends when A was staying at his home or was otherwise at her home.
When A would sleep over at the applicant’s house, she would stay in the back room where there was a computer. The applicant would go into that room to use the computer. Whilst in the room he would kneel next to A’s bed and, starting at her shoulders, would rub his hand up and down her back to her thighs. He would run his hand under her shirt moving from one breast to the other, holding onto them for a couple of seconds at a time. He would also rub her thighs over her shorts. This abuse continued for approximately one year, before progressing to the applicant sliding his hand under her shorts and, later in time, inserting his finger into her vagina. There was also an occasion when the applicant placed A’s hand over his penis.
The applicant continued abusing A until she began seeing a boyfriend in June 2017. About a year later, after A broke up with her boyfriend, the applicant began offending against her again. However, the touching from this time was limited to the applicant rubbing his hand up and down A’s back, bottom and thighs over her clothing. The abuse only ceased in May 2019 when A began a new relationship.
Turning to count 2, the applicant abused B almost weekly over two and a half years, commencing in 2017, when she was 11 years old. The abuse continued until 2020, when B was 14.
The applicant touched B’s breasts and vagina, including underneath her clothing, when he was alone with her at his home, and when at her home. When B stayed at the applicant’s home, whilst she was watching television, the applicant would sit next to her and touch her breasts and vagina under her clothing. The touching progressed, with the applicant inserting his finger into her vagina on more than one occasion.
Count 3 related to the applicant’s abuse of C. The applicant first abused C in 2018 when she was aged 10, and continued to do so until 2020, when C was 12.
When C went to use the applicant’s home, she would go into the back room to use the computer. The applicant would enter the room and touch her breasts under her shirt. This happened on multiple occasions. Further, when C stayed over at the applicant’s home, the applicant would come into her bedroom early in the morning, rub her arms and put her hand near his penis. The conduct was repeated frequently during the period of abuse.
The last occasion occurred when C was suspended from school and her mother had entrusted the applicant with her care. C was at the computer in the back room of the applicant’s home when the applicant stood behind her and began rubbing her breasts under her shirt. C told the applicant to stop, and he did. When C’s mother returned to collect C, he again took her to the back room and began touching her again. The applicant asked C if she liked it and she replied, ‘no’. The applicant then told C, ‘okay, then just don’t tell anyone or I’ll go to gaol’.
The applicant’s offending came to light in September 2020 when the youngest of the victims, C, disclosed to a school counsellor some of the offending against her. C’s mother was called to the school and C confirmed with her mother what she had told the counsellor. Subsequent enquiries by the mother revealed that her other daughters, A and B, had also been sexually abused by the applicant.
The sentencing Judge received victim impact statements from the three victims and their mother. As one would expect, each of the victims has been significantly impacted by the offending against them. Each of them explained the traumatic effects of the abuse upon them, and their continuing attempts to understand what had happened and why it had happened to them, and to recover from the abuse they suffered. The victims’ mother explained the anger, confusion and guilt that she and her husband have experienced. The victim impact statements are very powerful accounts of the effects the offending have had upon the entire family, including their pain at losing the relationship they had with the victims’ grandmother (the applicant’s wife) as a result of her continuing to support the applicant.
Personal circumstances
The sentencing Judge received affidavits from both the applicant and his wife. He also received reports from a psychologist, Mr Fugler, and from SA Prison Health Services.
At the date of sentencing, the applicant was 70 years of age. He was born in Lismore, New South Wales, and was the oldest of three children. His father was a long distance truck driver, and largely absent from the family home. The applicant said that he did not enjoy a close bond with his father. His father died at 50 years of age. The applicant remains in contact with his mother, who is 91 years of age and lives in Lismore. He has a good relationship with his mother, and enjoys spending time with her.
The applicant considers that he had a normal upbringing, with his childhood experiences and memories being focused around sporting activities. He was a well-behaved child and an above average student, finishing his schooling through to year 12. He left home at the age of 18 to join the army. He served at a number of bases for 12 years, and rose to the position of captain.
The applicant has been employed for most of his adult life, until he retired in 2018 after being diagnosed with throat cancer. His employment was mainly in the trucking industry. He also worked as an operations manager for various companies, built computers for several years, and worked as a coordinator for a bus company.
The applicant was married to his first wife for 25 years, and had three children with her. He commenced living with his current wife in 1999, and they ultimately married in 2017. His wife remains supportive of him, despite being ostracised by other family members as a result of the applicant’s offending.
The applicant’s wife suffers from various medical conditions, and has become reliant upon the applicant in respect of many aspects of her day to day life. Whilst imprisoned, the applicant will, of course, not be able to provide that support.
The applicant also suffers from a number of medical conditions which were detailed in the material before the sentencing Judge. The report from SA Prison Health Services, however, indicated that all of these health issues were able to be managed in a prison setting.
The applicant told Mr Fugler that when he first engaged in sexual activity with his step-granddaughters he did not think that his actions were inappropriate. He later came to realise that his conduct was wrong, but did not stop his offending. The applicant denied having any deviant sexual interest in children prior to his offending, and told Mr Fugler that he had not had any sexual fantasies involving children.
The applicant did not report any mental health concerns to Mr Fugler, although he did say that as a result of his offending he had experienced a sense of dread, and had been concerned about the impact of his actions upon his step-granddaughters. He also said that he had become emotionally withdrawn as a result of the embarrassment and shame associated with his offending.
The applicant does not have any criminal history. He admitted his offending upon it coming to light in the manner described earlier in these reasons. He pleaded guilty after his first appearance in the Magistrates Court. According to Mr Fugler, the applicant takes full responsibility for the inappropriate sexual behaviour in which he engaged. The sentencing Judge accepted that the applicant was remorseful for his actions. His Honour noted Mr Fugler’s view that the applicant fell into the low risk range in terms of the likelihood of him engaging in further sexual offending. However, he also expressed the view that the applicant needed, and would greatly benefit from, a specialised sexual offenders treatment program.
The sentencing remarks
After summarising the applicant’s offending, and his personal circumstances, the sentencing Judge explained the seriousness of the offending. He mentioned the paramountcy of protecting the safety of the community, and in particular of protecting vulnerable children from sexual predators such as the applicant. His Honour referred to the gross abuse of trust inherent in the applicant’s offending. He emphasised the importance of general deterrence in sentencing for offending of this type, as well as the need for personal deterrence and punishment.
The sentencing Judge described the role that the guidance provided by the sentencing standard in R v D[1] played in the notional starting points that he used for each of the offences:
I consider the sentencing standard of R v D is engaged in relation to your offending against both A and B. Your sexual offending against A was a course of conduct over about five years when A was aged from 10 to 15 years. The conduct involved unlawful sexual intercourse in the form of you digitally penetrating her vagina. You were in a position of trust. Having regard to all the circumstances, including your remorse and cooperation with police, I can see no reason to depart from the applicable standard. Your course of conduct commenced when A was under 12 years of age. But for your early guilty pleas, I would have sentenced you to 12 years imprisonment on this count.
Your sexual offending against B was a course of conduct over about three years from when she was aged about 11 to 14. That conduct included unlawful sexual intercourse in the form of you digitally penetrating her vagina. You were in a position of trust. Again, having regard to all of the circumstances I can see no reason to depart from the applicable standard. Your course of conduct commenced when B was under 12 years old. But for your early guilty plea I would have sentenced you to 12 years imprisonment for this count.
Your offending against C was also a course of conduct over about two years when she was aged from 10 to 12. Your offending did not involve unlawful sexual intercourse and for that reason I do not consider the standard in R v D applies. Your offending was a gross abuse of your position of trust. But for year early guilty plea I would have sentenced you to six years imprisonment on this count.
[1] R v D (1997) 69 SASR 413.
After explaining his rationale for affording the applicant the maximum available reduction of 25 per cent for his pleas of guilty, the sentencing Judge noted that this resulted in notional head sentences of nine years imprisonment for count 1 (reduced from 12 years), nine years imprisonment for count 2 (reduced from 12 years), and four years and six months imprisonment for count 3 (reduced from six years).
In ordering that those sentences be served cumulatively, the sentencing Judge said:
Each sentence of imprisonment is to be cumulative on the other. Your offending in relation to each of your three step-granddaughters is a separate and serious incursion into crime. Each of A, B and C are individual victims. Whilst there is some overlap of the time, place and the nature of your offending, I do not consider that gives rise to a need to make any of the sentences concurrent or partially concurrent.
Having decided to aggregate the sentences, the sentencing Judge noted that this resulted in a total sentence of 22 years and six months imprisonment.
By reason of his offending, the applicant was a serious repeat offender for the purposes of s 54 of the Sentencing Act. While s 54(1)(a) thus empowered the sentencing Judge to impose a sentence that was not “proportional to the offence”, his Honour said that he had not been asked by the prosecution to, and did not intend to, impose a sentence that was other than proportionate.
Utilising the principle of totality, the sentencing Judge made a reduction that resulted in an ultimate head sentence of 18 years imprisonment for the three offences:
I need to stand back and consider the principle of totality and whether that sentence of 22 years and six months imprisonment is crushing on you.
You are now 70 years of age. I have set out your personal circumstances. Despite the seriousness of your offending I consider that such a sentence would be crushing upon you. I consider a reduction in the aggregate sentence is appropriate to ensure proportionality between the aggregate sentence and the overall criminality and circumstances of your offending and of you. Applying that principle, I reduce your sentence to 18 years imprisonment.
The sentencing Judge concluded that, as the applicant was a serious repeat offender, and there were no exceptional circumstances of the type contemplated by s 54(2)(a), he was required to fix a non-parole period of no less than four-fifths the length of the head sentence. He fixed a non-parole period of 14 years, four months and 25 days.
As the sentencing Judge explained, it was neither permissible nor appropriate to suspend the applicant’s sentence of imprisonment, or to order that he serve it on home detention. An immediate custodial sentence was required. His Honour also made an intervention order pursuant to s 28(5) of the Sentencing Act.
Relevance to head sentence of mandatory minimum non-parole period

In challenging the sentence imposed below, the applicant contended that the sentencing Judge erred in not taking into account, when setting the applicant’s head sentence, the legislative prescription under s 54(1)(b) that in sentencing the applicant (as a serious repeat offender) the non-parole period fixed by the sentencing court must be at least four-fifths the length of the head sentence. Accepting, at least for the purposes of this argument, that the head sentence of 18 years imprisonment might otherwise have been within the appropriate range, the applicant contended that, when viewed in the context of a mandatory minimum non-parole period of four-fifths of the head sentence, it could be seen that the head sentence was manifestly excessive.
For the reasons that follow this argument is misconceived and must be rejected.
First, the argument is contrary to s 11(4)(a) of the Sentencing Act. That subsection provides:
(4) A court must determine the sentence for an offence without regard to –
(a) the fact that this Act or another Act prescribes a mandatory minimum non-parole period in respect of the offence.
The predecessor to s 11(4)(a) was s 10(1a) of the Criminal Law (Sentencing) Act 1988 (SA). That section was inserted into that Act by s 5 of the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA). The latter introduced mandatory minimum non-parole periods for the offence of murder and for serious offences against the person. In his second reading speech, the then Attorney-General referred to the proposed s 10(1a) and said:[2]
… New subsection (1a) provides that a court, in determining sentence for an offence, must disregard any mandatory minimum non-parole period prescribed in respect of the sentence under this Act or another Act. This new subsection is included so as to discourage the setting of a lower head sentence than would otherwise be imposed in the case where a minimum mandatory non-parole period is prescribed. …
[2] Parliament of South Australia, House of Assembly, Parliamentary Debates, Hansard, 8 February 2007 at 1745; see also R v B, FG (2013) 115 SASR 499 at [64]-[68] (Sulan J, Anderson and David JJ agreeing).
It is plain from the text of ss 10(1a) (and its successor, 11(4)(a)) that the mandatory minimum non-parole period regime introduced through the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act, as confirmed by the above legislative context, was not intended to effect any change in the then current sentencing standards or methodology. The introduction of mandatory minimum non-parole periods for certain offences was a reflection of a legislative policy that was intended to affect the fixing of non-parole periods, without effecting any change to the appropriate head sentence for such an offence. Even though the mandatory minimum non-parole period that now exists in s 54(1)(b) of the Sentencing Act was introduced separately, and appears in a different section to the mandatory minimum non-parole periods applicable to murder and serious offences against the person, there is no reason to think that Parliament intended the latter to be treated any differently from the former.
The applicant’s argument in the present case is defeated by the terms of s 11(4)(a). To reduce the applicant’s head sentence by reference to the impact of the requirement to impose a non-parole period of at least four-fifths the length of that head sentence would be contrary to the clear terms of s 11(4)(a), and contrary to the obvious rationale for its enactment.
To the extent that the applicant sought to rely upon the earlier reference in s 10(1)(a) of the Sentencing Act to the principle of proportionality being applicable to the determination of the sentence to be imposed for an offence, we do not think this reference to proportionality assists the applicant. Subsection 10(1)(a) is plainly a more general provision that must yield to the specific expression of Parliament’s intention is s 54(1)(b) of the Sentencing Act. This is confirmed by the reference in the introductory words in s 10(1) to its application being “[s]ubject to this Act”.
Secondly, and in any event, the approach to sentencing contended for by the applicant is contrary to principle. It misconceives the fundamental nature of, and relationship between, a head sentence and a non-parole period. The former is the appropriate sentence for the particular offending and offender. The latter is the sentencing court’s view as to the minimum period of imprisonment that it is necessary for the offender to serve in order to achieve the objectives of the sentencing process. While both involve a consideration of the same wide range of matters, there are differences of emphasis and weight that reflect the differing nature and function of the head sentence and the non-parole period.[3]
[3] R v Palmer [2016] SASCFC 34 at [3]-[4] (Kourakis CJ) and [23]-[26] (Stanley J, Kourakis CJ and Doyle J agreeing), and the authorities referred to therein.
Importantly for present purposes, the fixing of a non-parole period involves a separate exercise of discretion that is informed by, and can only be undertaken subsequently to, the Court’s determination of the appropriate head sentence. The expected outcome in respect of the non-parole period cannot affect the determination of an appropriate head sentence. To suggest otherwise is to suggest that the Court should engage in backwards reasoning. The impermissibility of this backwards reasoning has been recognised by this Court in DES v The Queen.[4]
[4] DES v The Queen [2020] SASCFC 32 at [146]-[147] (Doyle J, Kourakis CJ and Livesey J agreeing). A similar point was made in Ellis v The Queen [2021] SASCA 103 at [21] (Livesey P and David JA).
It is true that the non-parole period is often described in terms of a proportion of the head sentence. It is sometimes said that the non-parole period will typically be between about 50 per cent and 75 per cent of the head sentence.[5] However, two important observations must be made.
[5] R v Palmer [2016] SASCFC 34 at [4] (Kourakis CJ); R v McIntyre (2020) 138 SASR 17 at [84] (Doyle J, Stanley and Hughes JJ agreeing); Day v The Queen [2021] SASCA 38 at [66] (Kelly P, Lovell and Livesey JJA).
The first is that the existence of a typical range for non-parole periods, even though often expressed as a percentage or proportion of the head sentence, does not gainsay the nature of the relationship between the head sentence and non-parole period, as described above.
The second is that references to the typical range for non-parole periods must be understood as being subject to any legislative prescription to the contrary. Here, Parliament has expressed an intention to override the typical range of non-parole periods that might otherwise have been applicable in accordance with the ordinary sentencing principles. To use the legislatively prescribed mandatory minimum non-parole period as a basis for then adjusting the head sentence to restore a more typical numerical relationship between the head sentence and the non-parole period would be to not only engage in unprincipled backwards reasoning, but also to ignore (indeed defeat) Parliament’s expression of its intention as to an appropriate non-parole period.
For these reasons, this limb of the applicant’s challenge to the sentence he received must be rejected.
Manifest excess
Having rejected the above argument, it remains to address the applicant’s more general complaint of manifest excess. In developing this argument, the applicant tended to focus upon the sentencing Judge’s approach to totality. However, the essence of the applicant’s argument was ultimately the more general contention that, even if the individual starting points for his three offences might have been within range, and even though the Judge made a reduction on account of totality, the sentence imposed was nevertheless disproportionately high.
In considering this contention of manifest excess, there is no need to repeat the principles governing this Court’s task. They are well known.[6] Of course, these principles include a requirement that this Court only intervene if the sentence ultimately imposed is outside the range of sentences that the sentencing court might reasonably have imposed. It is not enough that this Court might have imposed a lesser sentence.
[6] See, for example, Ndreka v The Queen [2021] SASCA 11 at [28] (Doyle JA, Kelly P and Bleby JA agreeing), summarising R v Morse (1979) 23 SASR 98 at 99 (King CJ, White and Mohr JJ agreeing), Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J) and Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The issues to be considered in sentencing the applicant included where the offending against each sat relative to the standard in R v D,[7] and how best to ensure proportionality in the ultimate head sentence given the multiple counts and the age of the applicant.
[7] R v D (1997) 69 SASR 413.
The insidious effects of sexual offending against children are well known, and have been explained in numerous authorities.[8] Those authorities explain why such offending calls for a strong sentencing response, as reflected in the maximum penalty of imprisonment for life that is applicable to contraventions of s 50(1) of the CLCA.
[8] R v D (1997) 69 SASR 413 at 423 (Doyle CJ); R v MJJ; R v CJN (2013) 117 SASR 81 at [84] (Kourakis CJ, Vanstone J agreeing); Glade v The Queen [2020] SASCFC 83 at [29]-[33] (Livesey J, Kelly and Bleby JJ agreeing); R v McIntyre [2020] SASCFC 101 at [45]-[48] (Doyle J, Stanley and Hughes JJ agreeing).
Addressing first the offending against A and B, there is no doubt that the offending against each was very serious. Each involved a vile course of sexual abuse by the applicant of one of his step-granddaughters over an extended period of time. The victims were both vulnerable children, and the offending involved repeated gross breaches of the trust reposed in the applicant by reason of his familial relationship with the victims and his advantage of age and life experience. Unsurprisingly, the offending has had a devastating and ongoing impact on each of their lives. As the applicant’s offending including penetrative acts, his offending attracted the standard in R v D.
In arriving at an appropriate sentence, it is important to keep in mind that the standard in R v D is to be applied flexibly. It provides guidance as to the appropriate penalty, but does not always dictate a notional head sentence of 12 years in the case of a child less than the relevant age.[9]
[9] Being 12 years of age at the time R v D was written, but now 14 years of age in light of the 2005 amendment to s 49(1) of the CLCA to increase the relevant age from 12 to 14.
While the applicant’s offending against A and B involved digital rather than penile penetration, the authorities quite rightly caution against an approach that focuses too closely upon the nature of the penetrative conduct, lest such differences take on a disproportionate significance in the sentencing process.[10]
[10] Musgrave v State of Western Australia (2021) 289 A Crim R 17 at [3]-[8] (Quinlan CJ).
That said, it remains appropriate, indeed necessary, in every case to examine closely the nature and extent of the abuse that the offender engaged in, its effect upon the particular victim, and the circumstances of the defendant. Here, and without intending to diminish in any way the force and significance of our earlier description of the seriousness of the applicant’s offending against A and B, it was relevant that in some of the other cases attracting the standard in R v D the victims were younger than here. Further, some of the victims in those other cases have also been subjected to a greater number, frequency and range of sexual abuse than the present victims, including abuse of an even more depraved and intrusive nature than the applicant inflicted upon A and B.
Bearing all of these matter in mind, and while acknowledging that starting points of slightly less than 12 years imprisonment for each of the offences against A and B would have been justifiable, we do not consider that the starting points adopted by the sentencing Judge for those offences were outside the permissible range when considered in isolation.
Likewise, we also consider that the starting point of six years imprisonment for the less serious (non-penetrative) offending against C was, when considered in isolation, within the range of appropriate penalties.
But the applicant fell to be sentenced for all three offences at the same time. It is trite that an essential aspect of sentencing an offender convicted of multiple offences is to ensure that the sentence ultimately imposed is proportionate to the overall criminality inherent in the offending and the circumstances of the offender.
It is also trite that there are various ways in which the sentencing court may seek to ensure that proportionality is achieved. Several recent authorities have included summaries of the various mechanisms and techniques available to the court to assist in the achievement of this objective.[11] They include not only the principles of concurrency and totality, and the ability to set a sentence for a particular offence or offences that is lower than might otherwise had been appropriate if the offender was not being sentenced for other offending at the same time, but also the utilisation of s 26 of the Sentencing Act to set a single sentence for multiple offences.
[11] R v W, PL [2017] SASCFC 119 at [37]-[51] (Doyle J, Bampton and Lovell JJ agreeing); Giordimania v The Queen [2020] SASCFC 28 at [35]-[37] (Doyle J, Nicholson and Hughes JJ agreeing); Lane v The Queen [2020] SASCFC 82 at [4]-[5] (Livesey J, Kelly J agreeing); R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276 at [31] (Lovell J, Nicholson and Parker JJ agreeing).
Here, the sentencing Judge invoked the principle of totality in reducing his notional cumulative starting point of 22 years and six months imprisonment to an ultimate head sentence of 18 years imprisonment. It is apparent from his Honour’s sentencing remarks that his rationale for invoking totality was his concern that, by reason of the applicant’s advanced age and health conditions, a sentence of 22 years and six months imprisonment would be “crushing”. This was a legitimate and appropriate concern.
When invoking totality to reduce a sentence that might otherwise have been imposed on the ground that it would be crushing, it is important to appreciate that this does not ordinarily involve any exception to the overarching obligation of the sentencing court to impose a sentence that is proportionate having regard to the overall criminality of the defendant’s offending and to the defendant’s personal circumstances. In reflecting the desirability, having regard to the rehabilitative objective of a sentence, of ensuring that an offender retains the hope and incentive of achieving rehabilitation during their lifetime, the reduction of a crushing sentence on totality grounds is ordinarily a mere manifestation of the concern to ensure proportionality in the sentence ultimately imposed.[12]
[12] R v Smoker (2016) 126 SASR 201 at [75]-[85] (Lovell and Hinton JJ), explaining several earlier authorities, including R v E, AD (2005) 93 SASR 20 at [37] (Doyle CJ, Debelle and Besanko JJ agreeing); R v Scott [2017] SASCFC 96 at [51] (Lovell J, Stanley and Parker JJ agreeing).
In any event, the potential for the sentence imposed upon the applicant to be crushing, given his age and health, was not the only source of concern in ensuring proportionality in the present case. As the sentencing Judge observed in his sentencing remarks, there was also “some overlap of the time, place and the nature” in the applicant’s offending. In our view, this was a significant feature of the applicant’s offending that needed to be reflected in the sentence ultimately imposed.
As counsel for the respondent emphasised, it is important to be precise when speaking of an “overlap” between multiple offences. Sometimes there may be an overlap in the physical conduct constituting two offences. That was obviously not the situation in the present case. Here there was an overlap in timing, but only in the sense that there was an overlap in the periods of abuse vis-à-vis the three victims. It is not as though he was abusing them at the same time, or even on the same days or occasions. For these reasons, in combination with the fact that the applicant’s offences involved three victims, it is unhelpful to describe the applicant’s offending as involving one course of conduct. It is more apt to describe it as involving at least three courses of conduct.
However, there remained an overlap in the matters relevant to the sentencing exercise in respect of each of the three offences that needed to be addressed in order to ensure that the ultimate sentence was proportionate. In addition to the overlap in the periods of the offending, each of the offences was of a similar nature, involving the applicant’s abuse of his position as step-grandfather of the victim, through repeated sexual abuse in his own home (or that of his grandchildren), for his own sexual gratification. As such, there was a real prospect that the imposition of a significant sentence of imprisonment in respect of one or more of these offences would assist in achieving some of the sentencing objectives intended to be achieved by the sentences for the others.
Counsel for the respondent submitted that, to the extent that the interconnection between the offences in the present case gave rise to any risk of a disproportionate sentence, that fell to be addressed through an application of the principle of totality, which is what the sentencing Judge did.
There are two difficulties with this submission. The first difficulty is that, insofar as the submission assumed that it would have been inappropriate to allow for some level of partial concurrency in the present case, we do not agree.
It may be accepted that the paradigm case for the application of the principle of concurrency is a case involving a single incursion into criminal conduct, or a single course of conduct.[13] However, as Kourakis J (as he then was) explained in R v Copeland (No 2),[14] even when the connection between two offences is insufficient to characterise them as involving a single course of conduct, there may nevertheless be sufficient reason to make the sentences for those offences at least partially concurrent. Sufficient reason may exist where the imposition of a penalty for one of the offences affects what is necessary to achieve the deterrent, punitive or rehabilitative objectives of the sentence for other offending.
[13] Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-93 (Wells J).
[14] R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[106] (Kourakis J).
This broader view of the scope of operation for the principle of concurrency has been adopted in subsequent decisions of this Court.[15] Indeed, in R v W, PL it was recognised that this broader approach to concurrency may extend to sexual offending against multiple victims.[16] It will remain important in such cases to ensure that the sentence ultimately imposed adequately reflects the violation of each of the victims, and this will ordinarily operate as a significant limit upon the extent of any allowance for concurrency, and may in some cases militate against any allowance at all.[17] But in some cases there may nevertheless be scope for some reduction for partial concurrency.
[15] R v W, PL [2017] SASCFC 119 at [41]-[43] (Doyle J, Bampton and Lovell JJ agreeing); R v Culley (2019) 134 SASR 92 at [18]-[23] (Kourakis CJ, Peek and Hughes JJ); Giordimania v The Queen [2020] SASCFC 28 at [34] (Doyle J, Nicholson and Hughes JJ agreeing).
[16] R v W, PL [2017] SASCFC 119 at [66]-[67] (Doyle J, Bampton and Lovell JJ agreeing).
[17] R v H, GJ(No 2) [2014] SASCFC 102 at [36] (Peek J, Blue and Stanley JJ agreeing); R v Harvey (No 2) [2014] SASCFC 106 at [68] (Bampton J, Kourakis CJ and Blue J agreeing); R v Wooldridge (2015) 123 SASR 422 at [74] (Gray ACJ, Peek and Nicholson JJ); R v W, PL [2017] SASCFC 119 at [55] (Doyle J, Bampton and Lovell JJ agreeing); R v B, RP [2019] SASCFC 9 at [43] (David AJ, Bampton and Parker JJ agreeing).

None of this is intended to gainsay the flexibility that must be afforded to sentencing Judges in terms of the techniques or mechanisms through which they might determine to ensure proportionality. While it would have been open to the sentencing Judge in the present case to allow for some partial concurrency, it would have been equally open to his Honour to address the concern to ensure proportionality in light of the connection between the offences through the mechanism of totality. Put another way, it cannot be said that there was any process error when the sentencing Judge decided to make the notional head sentences for the three offences cumulative rather than partially concurrent. The search for error involves inquiring further to consider whether the sentence in fact ultimately imposed did adequately allow for the interconnection between the offences.
To this end, and this is the second difficulty with the submission made by counsel for the respondent, it is not clear from the sentencing Judge’s remarks that he did seek to address the potential for disproportion that arose from the interconnection between the offending through the mechanism of totality. When invoking the principle of totality, the sentencing Judge only mentioned the concern that arose from the applicant’s age and hence the potential crushing effect of the sentence. While mindful of the need to eschew any overly zealous parsing of sentencing remarks in the search for error, and mindful that the sentencing Judge had earlier referred to the “overlap” between the offences, the sentencing remarks nevertheless do not make it clear whether or not, when invoking totality, the sentencing Judge intended to address the risk of disproportion that arose from the similar nature of the three offences.
In the ultimate analysis, however, there is no need to focus too closely upon the process utilised by the sentencing Judge. The error alleged by the applicant is one of outcome, not process. The ultimate issue is whether the sentence ultimately imposed was manifestly excessive. This requires consideration of whether the sentence was disproportionate in the sense that it did not adequately reflect all of the relevant considerations bearing upon the criminality of the applicant’s conduct and his personal circumstances, including those arising out of both the interconnection between the offences and the age and health of the applicant. In this respect, it must be borne in mind that any allowance for the potentially crushing effect of a sentence may overlap with any allowance for the interconnection between the offences.
Recognising that a determination of manifest excess is often an expression of a conclusion that does not admit of detailed analysis, it remains to state our conclusion as to the appropriateness of the head sentence ultimately imposed upon the applicant. In our view, despite the seriousness of the offending, and the fact that it involved three separate victims, a head sentence of 18 years was manifestly excessive.
It follows that the appeal should be allowed, and the applicant resentenced.
Resentence
In resentencing the applicant it is possible to be brief. The relevant considerations stemming from both the circumstances of the offending and the applicant’s personal circumstances have already been canvassed at length.
The offending against each of the victims was serious. We have outlined earlier the reasons why offending of this nature is serious, and calls for a strong sentencing response.
For the reasons also earlier outlined, while the sentencing standard in R v D is relevant to the appropriate penalty in respect of the offending against both A and B, that standard is to be applied flexibly. It is but a guideline that must yield to the particular circumstances of the offending and offender in question. Here, for the reasons we have given – and without intending to suggest that the starting points adopted by the sentencing Judge were, in isolation, manifestly excessive – we consider it appropriate to adopt lesser starting points for the head sentences than those imposed by his Honour. We would start with 11 years imprisonment for the offending against A, 11 years imprisonment for the offending against B, and five years imprisonment against C.
Like the sentencing Judge, we would reduce each of these notional starting points by 25 per cent to reflect the applicant’s pleas of guilty, giving reduced notional head sentences of eight years and three months imprisonment for the offending against A (count 1), eight years and three months imprisonment for the offending against B (count 2) and three years and nine months imprisonment for the offending against C (count 3).
Turning then to the considerations arising out of the interconnection between the offences, again for the reasons we have earlier set out, we consider that there would have been room for a degree of partial concurrency. Alternatively, the interconnection between the offences could have been addressed through a reduction via the principle of totality. However, in the circumstances of the present case, we consider it appropriate to address these considerations through the imposition of a single sentence of imprisonment utilising s 26 of the Sentencing Act. We would impose a single sentence of 15 years imprisonment. In our view, a head sentence of 15 years imprisonment appropriately reflects, and is a proportionate response to, both the overall criminality of the applicant offending and his personal circumstances. We do not consider that any (further) allowance is required to reflect his age or ill health.
Given the legislative prescription under s 54(1)(b) of the Sentencing Act that requires a non-parole period of at least fourth-fifths the length of the head sentence, we would fix a non-parole period of 12 years.
It was not contended that it was permissible or appropriate to suspend this sentence of imprisonment, or to order that it be served on home detention.
Conclusion
We grant permission to appeal and allow the appeal; set aside the sentence of imprisonment imposed by the sentencing Judge; substitute in lieu thereof a single sentence of 15 years imprisonment; and fix a non-parole period of 12 years.
Both the sentence of imprisonment and the non-parole period are backdated to commence on 1 September 2021, being the date the applicant was originally sentenced.
The intervention order made by the sentencing Judge under s 28(5) of the Sentencing Act will remain in force.