Evans v The Queen - [2019] SASCFC 145

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
EVANS v THE QUEEN
[2019] SASCFC 145
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Parker)
21 November 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – where appellant pleaded guilty to one count of unlawful sexual intercourse with a person under the age of 17 – where appellant sentenced to imprisonment for two years, five months and 13 days with a non-parole period of 16 months – where Judge declined to suspend or order sentence be served on home detention.
Whether the sentence is manifestly excessive – whether the length of the sentence is outside of the permissible range – whether the sentence ought to have been suspended - whether the sentencing Judge mischaracterised the objective seriousness of the offending by failing to properly consider the appellant’s mental impairment and the fact that the complainant had consented to the offending – whether the Judge erred by focusing on the complainant’s intoxication and on the age disparity between appellant and the complainant, and by characterising the offending as a 'breach of relationship' between the appellant and the complainant.
Held, per Kelly and Parker JJ (Stanley J agreeing), dismissing the appeal:
1.       There was no need for the Judge to do more than take the appellant’s mental health issues into account as part of his personal circumstances as relevant to his prospects for rehabilitation.
2.       There was never any suggestion that the complainant had consented. The basis of the plea did not turn a non-consensual act into a consensual one as any potentially mitigating factor in sentencing.
3. Age disparity was a relevant consideration. One of the purposes of s 49(3) of the Criminal Law Consolidation Act 1935 (SA) is to protect young people from their own immature inclinations.
4.       The complainant’s intoxication was a relevant consideration.
5.       The Judge was required to characterise the nature of the relationship between the appellant and the complainant. He did so correctly and no error has been demonstrated.
6.       The sentence was not outside of the reasonable range available to the sentencing Judge. The appellant has not demonstrated any error which would justify the intervention of this Court.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Sentencing Act 2017 (SA) s 11(1)(b), s 11(1)(f), s 96(3), referred to.
R v Monks [2019] SASCFC 47; Clarkson v R (2011) 32 VR 361; R v D (1997) 69 SASR 413, applied.
R v Jackson [2014] SASCFC 101; R v Mackay [2019] SASCFC 45, distinguished.
R v Brace [2011] SASCFC 54, discussed.

EVANS v THE QUEEN
[2019] SASCFC 145
Court of Criminal Appeal: Kelly, Stanley and Parker JJ
KELLY AND PARKER JJ.
Introduction

This is an appeal against a sentence imposed by a District Court Judge for one count of unlawful sexual intercourse with a person under the age of 17 contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), to which the appellant pleaded guilty.
The appellant was sentenced to a term of three years and six months’ imprisonment, reduced by 30 per cent in respect of the guilty plea to a total head sentence of two years, five months and 13 days. A non-parole period of 16 months was imposed. The Judge declined to suspend the sentence or order that it be served on home detention.
The appellant originally appealed in respect of three grounds. A single Judge of this Court granted permission in respect of the third ground, which is a complaint that the sentence is manifestly excessive, and refused permission on grounds 1 and 2. The appellant does not press grounds 1 and 2 and now appeals in respect of the third ground only.
The submission on appeal is that the sentence imposed is manifestly excessive for two reasons; first, that the length of the sentence imposed is outside the range permitted to the sentencing Judge and, second, that the failure to suspend is indicative of error.
Before turning to consider the sole appeal ground it is necessary to set out the factual background.
Factual background
The offence for which the appellant was convicted occurred on 14 May 2018 and comprised a singular act of penile-vaginal sexual intercourse with the complainant, who was 15 years of age at the time. The offending occurred in the context of a ‘threesome’ involving the appellant’s then partner, AL, who was 25 years of age. The appellant was 26 years old at the time.
The complainant had met the appellant and AL approximately one month before the offence occurred and would regularly spend time with them at their home in Pennington. The complainant was at that stage prone to skipping school and running away from home. She met the appellant and AL in circumstances where she was wandering the street asking for cigarettes.
On the day of the offence, the complainant and the appellant visited AL in hospital. AL discharged herself and the three of them walked back to the Pennington premises. During the walk, and upon their return to the home, the appellant, AL and the complainant discussed engaging in a ‘threesome’. The complainant showered and laid on a bed with AL, who was present throughout the offending that followed. The appellant removed the complainant’s clothing and underwear and thereafter had penile-vaginal sexual intercourse with her while wearing a condom.
Prior to sexual intercourse taking place, the complainant consumed cannabis with the appellant and AL and became intoxicated.
The matter was reported to the police two weeks after the offence when the complainant’s mother and grandmother became aware of the sexual activity initially through an admission made by AL.
The appellant was arrested on 27 May 2018. When interviewed by the police, he admitted the act of sexual intercourse. As to the matter of the complainant’s age, the appellant stated that she had told him she was 18 years old but that he did not initially believe her. He said, at the time of having intercourse with the complainant, he thought she was 18, however she told him afterwards that she was 15. The appellant told police that he considered that the complainant looked younger than 18.
The offence has had a deleterious effect on the complainant.
Complaints on appeal
The essential complaint made on appeal is that the Judge mischaracterised the objective seriousness of the offending and failed to accord appropriate weight to the mitigatory aspects of the facts surrounding the offending and the appellant’s personal circumstances, thereby rendering the sentence manifestly excessive.
Counsel for the appellant highlighted four aspects about the sentencing remarks which, he submitted, support the contention that the sentencing Judge mischaracterised the objective seriousness of the offending.
The first aspect he highlighted was that the sentencing Judge rejected the appellant’s submission that the offending was an example of unlawful sexual intercourse towards the lower end of the scale of seriousness. Counsel for the appellant complains that the sentencing Judge gave no explanation for rejecting that submission. He pointed to the fact that there was no grooming or uncharged conduct leading up to the offence, that it was a spontaneous isolated event, that the complainant consented to involvement in the offending, and that the appellant was a person of low intellect with longstanding mental health issues. He contended that, although there might not be a direct causal connection between the appellant’s mental health issues and the offending, his mental health issues prominently featured in the background and the Judge was still required to take that into account when considering the appellant’s state of mind, particularly as to his belief that the complainant was of adult age. The appellant’s counsel submits that this was necessary even though the appellant had told police of his suspicion that the complainant was not of adult age.
The second aspect of the sentencing remarks that the appellant’s counsel suggests shows the Judge mischaracterised the serious of the offending is to do with comments made by the Judge that he did not accept the appellant’s submission that the offending did not involve a breach of relationship. The appellant’s counsel submits that this caused the Judge to assess the conduct as objectively more serious than it was, particularly when compared to other offences of a sexual nature in which there was a breach of trust proven.
The third aspect highlighted is the fact that the Judge treated the complainant as particularly vulnerable because of her consumption of cannabis. Counsel for the appellant submits that this revealed an error by the Judge as the complainant’s intoxication in this case was not as serious as the facts and circumstances revealed in R v Brace.[1]
[1] [2011] SASCFC 54.
The fourth aspect highlighted by the appellant’s counsel is that the Judge’s focus on age disparity was disproportionate as the age disparity in this case was not as great as in some cases of this type. The appellant’s counsel submits that this, together with the fact that the appellant was of low intellectual capacity, should have been factored into the sentence. The appellant was not as sophisticated as the ordinary 26 year old.
Before turning to each of these specific complaints in turn, it is important to first consider the applicable principles underpinning the relevance of mental impairment and mental conditions in the sentencing process, as the appellant’s mental condition is at the foundation of many of the appellant’s submissions on appeal.
The relevance of mental impairment
The relevance of a mental impairment to the sentencing process has been discussed in a number of recent decisions in this Court. The most useful summary of the principles is to be found in the judgment of Doyle J in R v Monks.[2] In Monks Doyle J surveyed the relevant authorities:
[2] [2019] SASCFC 47.
[33]Both at common law, and under s 11(1)(f) of the Sentencing Act 2017 (SA), the mental condition of an offender is a relevant consideration in the sentencing process. Indeed, the fact that an offender was suffering from some form of mental impairment or disorder at the time of the offending may be relevant to the sentencing process at various stages and in various ways, depending upon the nature of the condition and the circumstances of the case more generally.
[34]A relevant mental condition may involve an intellectual disability, or it may involve some form of mental illness or disorder. Insofar as it involves some form of mental illness or disorder, it need not be attributable to a recognised psychiatric condition. What matters in any given case is not the label to be applied to the condition, but whether and to what extent the condition can be shown to have impaired the offender’s mental functioning at the time of the offending. Further, the condition or impairment need not be permanent or long-standing; it may be temporary in nature. Indeed, while it raises some different considerations, the impairment may be the product of intoxication by reason of alcohol or drugs, either in isolation or in combination with some underlying mental illness or disorder.
[35]In determining the relevance of the impairment of an offender’s mental functioning in a particular case it will be necessary to consider matters including (i) the nature and severity of the impairment; (ii) the extent to which the impairment was operating on the offender’s mental functioning at the time of the offending and hence can be said to have influenced or caused the offender to commit the offence and/or to have affected the offender’s capacity to appreciate the wrongfulness and gravity of the offending; (iii) whether the impairment was the product of an underlying mental illness or disability, self-induced intoxication, or some combination of such factors; (iv) if the product of self-induced intoxication, whether it reflected an addiction, and if so the circumstances of that addiction; and (v) the ability of the offender to reduce or overcome the significance of any underlying condition or addiction, and the steps taken or able to be taken by the offender in that regard.
[36]The stages at which, and ways in which, the impairment informs the sentencing process will depend upon what falls from the consideration of each of the above, but may be summarised as follows.
Moral culpability
[37]First, the existence of some form of mental impairment may affect the offender’s degree of moral culpability for their offending, as opposed to their legal responsibility for that offending. It may do so in several ways. It may do so, for example, by impairing the offender’s ability to exercise appropriate judgment, to maintain self-control and resist impulsive behaviour, to think and reason clearly, and to make calm and rational choices. It may influence or cause the offender to act in a disinhibited or aggressive manner. It may obscure the offender’s intent to commit the offence, or negate any suggestion of deliberation or premeditation. It may impair the offender’s ability to appreciate the wrongfulness, gravity and implications of their offending.
[38]Assuming a ‘realistic connection’ or ‘causal link’ between the impairment and the offending, such that the impairment is more than merely part of the background to the offending, this may reduce the offender’s moral culpability or blameworthiness for their offending in one or more of the ways set out above. Where this is so, it may reduce the need for denunciation and punishment in the sentence to be imposed, and hence also the length or severity of the sentence necessary to arrive at a punishment that is proportionate, or ‘just in all the circumstances’. As the Court explained in Director of Public Prosecutions v Weidlich:
Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved. The Court in R v Tsiaras [1996] 1 VR 398 and R v Verdins (2007) 16 VR 269 … recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility.
…
General deterrence
[42]Secondly, the existence of an impairment of the offender’s mental functioning may also affect the sentencing judge’s consideration of general deterrence. It is well recognised that offenders whose offending reflects some underlying mental illness or disability may be an inappropriate medium for achieving general deterrence. Lush J explained the reason for this in R v Mooney:
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and the needs of the community.
[43]While mental illness or disability may thus result in the need for general deterrence being ‘sensibly moderated’, it will not generally eliminate the need for general deterrence. Indeed, in cases in which the offending is particularly grave, or the impairment is not particularly significant or did not impair the offender’s understanding of the gravity of their conduct, the need for general deterrence may not be much diminished.
…
Personal deterrence, character and rehabilitation
[45]Thirdly, the existence of an impairment may be relevant to the sentencing court’s consideration of personal deterrence, and the related considerations of the offender’s character and prospects of rehabilitation. The rationale for a potentially reduced concern with personal deterrence in cases of mental impairment was explained by Maxwell P in Green v The Queen:
The principle of specific deterrence is premised on the assumption that an appropriate punishment will operate to deter an offender from repeating the same or similar conduct in the future. Whether and to what extent that assumption is applicable to a person whose mental functioning was impaired at the time of the offending will depend on the circumstances. As Steytler J explained in Payne v The Queen [2002] WASCA 186 at [43]:
[I]n a case in which the mental illness contributed to the commission of the offence, the importance of personal deterrence may, depending upon the nature and effect of the illness, be lessened. The whole notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person’s ability to make that very analysis, there is no justification for affording the consideration of personal deterrence the measure of significance as it might have in the case of a well person, although there may then be a greater need to protect the public.
…
[49]Similarly, in other cases of mental impairment attributable to ongoing conditions (particularly those not susceptible to treatment), this may adversely impact upon the offender’s prospects of rehabilitation. Indeed, it may result in a greater need to ensure that the sentence imposed adequately protects the safety of the community.
Hardship of the sentence
[50]Fourthly, the existence of an impairment that reflects some underlying mental condition may also, depending on the nature and circumstances of that condition and its treatment, affect the hardship of a given sentence of imprisonment to the offender. The offender’s mental condition may result in a sentence of imprisonment being a greater burden on the offender, or having a significant adverse effect upon the offender. This may in turn affect the sentence that it is appropriate to impose, including not only the length of the sentence but also the form and conditions of the sentence.
Some further observations
[51]The above summary of the potential relevance of an offender’s mental impairment to the sentencing exercise not only reflects the decisions of this Court, but also broadly accords with similar summaries provided by interstate courts. While admittedly general and non-exhaustive, such summaries assist in providing a framework for considering the potential relevance of an offender’s mental condition to the sentencing exercise.
…
[57]By way of example, Martin J, after a careful review of the authorities, made observations to this effect in R v Wiskich. And more recently, after referring to the reasons of both Martin J in R v Wiskich and Gleeson CJ in R v Engert, and the High Court’s endorsement of the latter in Bugmy v The Queen and Munda v Western Australia, Hinton J emphasised the significance of the individualised nature of the sentencing process to the consideration of an offender’s mental impairment. In R v Hronopoulos, in the context of an offender affected by mental illness, his Honour said:
Thus, within the bounds of proportionality, a sentence is to be fashioned having regard to the protection of the community and the purposes of punishment that fits the offending and the offender. Within that framework the question of how a particular mental illness influences the sentencing outcome will be a product of its symptoms and consequences for the defendant and the bearing that such symptoms and consequences have on achieving the purposes of the sentencing task. Critical to the task will be the [exposure] of a link grounded in the evidence before the sentencing court between the illness and any of the purposes of punishment or the mode of punishment under consideration.
…
[59]Finally, it is important to bear in mind that even in those cases where a mental condition operates to reduce the offender’s moral culpability, and to reduce the need for general and personal deterrence, the sentencing court must not lose sight of some of the broader objectives of the sentencing process. Those broader objectives may still call for a very substantial sentence. Relevant in this respect is the following passage from the reasons of French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda v Western Australia:
[T]he proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of that community.
[Citations omitted]

We have quoted at length from the judgment of Doyle J as we regard his observations to be the most accurate and convenient summary of the applicable principles. We have borne these principles in mind when assessing the appellant’s complaint that the Judge failed to take sufficient account of the appellant’s mental health issues. We now turn to consider each of the complaints raised by the appellant with respect to deficiencies or errors in the Judge’s sentencing remarks.
The mental condition of the appellant
The evidence as to the appellant’s mental condition came from the psychiatric report of Dr Begg dated 14 March 2019.
The complaint on appeal is that the Judge failed to take into account the appellant’s not insignificant health issues when assessing the need for general and personal deterrence. The appellant also complains that the Judge failed to take into account the fact that the appellant’s time in custody was likely to be more challenging to him than for a prisoner who does not suffer from the same afflictions.
Dr Begg said that the appellant presented as a man with a very poorly formed personality and that he had difficulty with his thoughts, emotions and impulses. When describing any underlining psychiatric or psychological condition endured by the appellant, Dr Begg concluded:
He presents as a man with a very poorly formed personality, a difficulty dealing with his own thoughts, emotions, and impulses. This is known as Borderline Personality Disorder. Under stress, he may become briefly psychotic. With limited intellectual capacity, but unlikely to be intellectually disabled, he struggles to deal with his inner world, and to relate with society. By creating multiple identities and pseudohallucinations, he is attempting to make sense of and control his emotional world.
I did not see signs of Schizophrenia, but don't exclude that as a diagnosis, as I have not had the opportunity to review past medical records. He is on a lot of antipsychotic and mood stabilising medication, which would suggest a Schizophrenic illness, but in people with very poor impulse control, who threaten to harm themselves and others, the need to provide chemical constraint of such impulses can result in high-dose medication.
However, Dr Begg expressed the opinion that there was no direct contribution between the appellant’s illness and the offending.
Dr Begg concluded that the appellant requires long-term management and medication to stabilise his emotions and impulses, and the stress of incarceration could see him regress in his personality. However, Dr Begg noted that the appellant has been in custody before and he did not describe that incarceration in a negative manner, which tends to suggest that he has the capacity to manage a custodial sentence. However, Dr Begg commented that the appellant’s tendency to try and appear confident may expose him to a risk of becoming a target of attack in custody.
The physical or mental condition of the appellant was one of the matters, amongst others, which the Judge was required to take into account pursuant to s 11(1)(f) of the Sentencing Act 2017 (SA).
The Judge took that matter into account at both stages of the sentencing process, first, when assessing the gravity of the offending and later when determining whether there was good reason to suspend.
It is significant that during sentencing submissions before the Judge the appellant’s counsel did not suggest that there was any causal link between the appellant’s mental condition and the offending. The appellant’s counsel referred to the mental health issues only in the context of assessing the appellant’s state of mind in relation to his belief about the complainant’s age after she had told him that she was 18 years old. To that end, as Dr Begg indicated, if the complainant told him she was 18 years old, the appellant’s concrete style of thinking would have likely made him uncritically accept that as factual.
The sentencing Judge explicitly stated that he had considered the submissions of counsel as well as the psychiatric report of Dr Begg. He repeatedly referred to Dr Begg’s opinion both in the context of discussing the assessment of the gravity of the offence and whether he was prepared to find good reason to suspend. His remarks in that respect were detailed and thorough.
Given the limited conclusions of Dr Begg, there was no need for the Judge to do more than take the appellant’s mental health issues into account as part of his personal circumstances and as relevant to his prospects for rehabilitation. There was no need to modify the personal or general deterrence considerations by virtue of the appellant’s mental illness. No error has been demonstrated in the approach the sentencing Judge took to this issue.
Consent
The appellant complains that the Judge did not take into account the fact that the parties, including the complainant, had effectively consented to the nature of the sexual activity between them. The appellant argued that the ‘consensual nature’ of the activity itself and the ‘consensual nature’ of the discussions leading up to it, whilst not offering any excuses or exoneration to the appellant, were nonetheless important for the Court to have taken into account when contextualising the gravity of the offending.
We make two observations about that submission. It is doubtful whether consent could be relevant here given the age disparity between the appellant and the complainant. As the Victorian Court of Appeal unanimously observed in Clarkson v R[3] with respect to relevantly similar provisions in equivalent Victorian legislation:
[3] (2011) 32 VR 361.
[36]In our view, the provisions of the Act to which we have referred preclude the sentencing court from approaching consent in this way. The necessary implication of the provisions is that the presence of consent does not of itself make the offence of sexual penetration of a child under 16 (or of committing an indecent act in the presence of a child under 16) any the less serious. Of itself, the child’s “consent” is irrelevant to the criminality of the conduct. The presumption of harm is unaffected by consent. It follows that neither the gravity of the offence nor the culpability of the offender is altered in any way by the victim’s consent alone. (On the other hand, proven absence of consent will significantly increase both the gravity of the offence and the culpability of the offender. Proof that the offender knew or suspected that the child was not consenting would found a charge of rape.
[37]To conclude otherwise, and to treat consent as mitigating, would defeat the objectives clearly set out in the Act. In order to advance the protection of children against the harms caused by premature sexual activity, the courts must enforce in the clearest terms the absolute nature of the prohibition. For the courts to endorse the notion that the child’s “consent” makes the sexual activity less blameworthy, or less grave, would undermine the very protection of children which the legislation seeks to secure. As the WASCA said in Riggall, even where a young person does appear to wish to engage in sexual activity, “there is a duty cast upon others to refrain from encouraging or acting upon those wishes. The more mature the other person, the greater the degree of self-control which should be demanded of them.”
…
[39]On this view, it cannot assist an offender merely to prove, on the balance of probabilities, that the child victim consented to the sexual act(s) in question. A sentencing judge is entitled — or, more accurately, bound — to reject a defence submission that proof of the victim’s consent, without more, justifies a more lenient sentence. For the reasons we have given, the offence provisions preclude a contention that consent as such makes the offence less grave, reduces the offender’s culpability or means that the harm to the victim is lessened.
Consent in context
[40]In every case, however, the sentencing court will examine the circumstances of the offending in order to assess the gravity of the offence and the offender’s culpability. The court should never consider the child’s consent in isolation. Instead, the court will need to investigate the circumstances in which the consent came to be given.
[Citations omitted]
Thus, it can be seen that there may be some circumstances where consent may be relevant in the sense that it is part of the context in which to evaluate the degree of exploitation of the child. The Court was referred to R v Jackson[4] in this regard. Jackson was a somewhat unusual case. The complainant was three days short of 17 years old. The offender was a police officer and met the complainant in the context of taking a statement from her concerning other sexual offences committed upon her. The complainant initiated text messages of a sexual nature telling him she wanted to have sexual intercourse with him. He responded in kind and thereafter they did have sexual intercourse.
[4] [2014] SASCFC 101.
The offender in that case was sentenced to two years’ imprisonment with a nine month non‑parole period, which was suspended.
There was a Crown appeal against the suspension of the sentence. There are always different considerations which arise on a Crown appeal against sentence. Even so, the offender in Jackson was extremely fortunate to have received the leniency of the court, where the sentence was ultimately suspended. It is doubtful whether the case would have been decided in the same way today, particularly in light of recent legislative changes to s 96 of the Sentencing Act 2017 (SA).
However, there is a more fundamental problem with the appellant’s submission: it is not factually correct. It is plain from the material before the Judge that there was never any suggestion that the complainant had consented to this activity.
In an affidavit affirmed in 2018, which was before the Court below, the complainant stated:
10.I got changed and put my clothes on then went into the lounge room with [AL] and [the appellant] where I had a couple of cones in a billie. A billie is a bong mixed with weed and tobacco. [The appellant] and [AL] have a bed in the lounge room. I was laying next to [AL] and talking to her when [the appellant] jumped on top of me. I was pretty high at the time.
11.[The appellant] crawled on top of me and was really creepy. He told me he wanted to fuck me. I told him no and told him to get off of me. He wouldn’t listen.
12.… I told him I didn’t want to do this. … He forced me to have sex with him.
It was undoubtedly for that reason that the prosecution factual summary filed in the Court on the date of the arraignment in the District Court contained no reference to the issue of consent.
However, the basis of the plea did not turn a non-consensual act into a consensual one as any potentially mitigating factor in sentencing.
It is evident from the complainant’s victim impact statement that the offending has had a very damaging effect on her.
There is no substance in this complaint.
Age disparity
We turn now to the next complaint which is that the Judge failed to take into account the relative age disparity between the appellant and the complainant, particularly in light of the appellant’s limited intellectual level.
This complaint may be dealt with briefly. The Judge acknowledged an 11 year age gap between the parties. Perhaps if the age disparity between the appellant and the complainant had been only one or two years, the appellant’s submission would have more force. As Stanley J relevantly observed during argument on appeal, this is one of those factors which decline in relevance the greater the age disparity between the parties.
One of the purposes of s 49(3) of the CLCA is to protect young people from their own immature inclinations. There is no substance in this complaint.
Complainant’s vulnerability
The appellant’s next complaint is that the Judge erred in treating the complainant as being particularly vulnerable by reason of her consumption of cannabis. The appellant complained that returning to the issue of the complainant’s intoxication on a number of occasions throughout the sentencing remarks amounted to treatment of the complainant as particularly and peculiarly vulnerable. The appellant complained that the prosecution’s reliance on the case of R v Brace[5] was not appropriate as, in that case, the complainant was so grossly intoxicated as to be incapable of controlling herself and incapable of cognition.
[5] [2011] SASCFC 54.
It may be accepted that the complainant in this matter was not as intoxicated as the complainant in Brace. However, there is no issue that the complainant in this case, a 15 year old girl, was, as she claimed, “high” to the point where she could not remember some of the details about what had happened.
To our minds the Judge has not over-emphasised this issue. It was a relevant consideration, he took it into account and no error has been demonstrated.
The breach of relationship issue
The complaint that the trial Judge wrongly characterised the offending as a breach of relationship arose out of the remarks of the Judge at pages 4 and 5 of the sentencing remarks:
Your counsel submitted that in this matter there was no grooming, no breach of trust or relationship and no prior course of conduct. I have difficulty in accepting that submission insofar as the breach of relationship is concerned. The complainant would attend at your house regularly and clearly had a close connection with your partner. It was when the three of you were walking back from hospital that the topic of a threesome was raised.
It is apparent that you have taken advantage of a young girl’s naivety as evidenced by her victim impact statement. The legislature views this type of conduct as serious as borne out by the maximum penalty for this offence.
The appellant argued that, unlike in more serious cases involving breach of trust of people who were in a position of loco parentis, the appellant occupied no such position in relation to the complainant. Therefore, in the appellant’s submission, the characterisation by the Judge of the offence as involving a breach of relationship is one more factor which points to error in his assessment of the gravity of the offending.
We do not agree with that submission.
Section 11(1)(b) of the Sentencing Act 2017 (SA) required the Judge to take into account the personal circumstances and vulnerability of any victim of the offence whether because of the victim’s age, occupation, relationship to the defendant, disability or otherwise.
The Judge was careful in his comments not to characterise the case as involving a breach of trust. However, he did correctly characterise it as one in which a vulnerable child, who had been in the habit of regularly visiting the appellant because of her friendship with the appellant’s partner, did in fact involve a breach of that relationship.
The complainant was a vulnerable young person who was wandering the streets looking for cigarettes when she first met the appellant and his partner. She was a child in the home of two adults, one of whom she believed was her friend.
The Judge was required to characterise the nature of the relationship between the appellant and the complainant. He did so correctly and no error has been demonstrated in this respect.
Manifest excess
We turn now to consider, in light of all of the above factors, whether the sentence imposed was manifestly excessive.
We acknowledge that there is no tariff for the offence of unlawful sexual intercourse. This Court has recognised that the circumstances in which is offence is committed are so variable that it would be unrealistic to establish a general tariff or standard other than in the circumstances delineated in R v D.[6] Therefore, comparisons with other sentences for like offending is of limited utility.
[6] (1997) 69 SASR 413.
The maximum penalty for an offence of unlawful sexual intercourse with a person under 17 years, is imprisonment for 10 years. The appellant did not come before the Court as a first offender. He had prior convictions for assault, including one of a serious assault on a police officer, and other minor street offending.
This Court has long recognised that it is necessary for courts to impose penalties which protect young people from their own immaturity and from older people prepared to take advantage of their youth and naivety. In these circumstances, the need for personal and general deterrence has often been emphasised.
In the circumstances of this case, the Judge was correct to characterise the complainant as vulnerable by reason both of the age disparity, her own personal circumstances and her consumption of cannabis which had caused her to become intoxicated. Further, the offending involved two adults in the context of a group sex scenario which exposed the complainant to further embarrassment and humiliation.
Although the Court was referred to a number of decisions including, in particular, R v Mackay,[7] we do not regard any of them to be of any particular relevance to the circumstances here. In Mackay, a 42 year old school teacher was convicted of maintaining an unlawful sexual relationship with a 17 year old student in her class. She was originally sentenced to four years, five months and 19 days’ imprisonment with a non‑parole period of two years and one month, which was not suspended.
[7] [2019] SASCFC 45.
The appellant successfully appealed and, in exercising its own discretion, the Court of Criminal Appeal resentenced the appellant to a term of three years’ imprisonment with a non‑parole period of 16 months and suspended the sentence. There were unusual circumstances, including the fact that the appellant was a first offender and her risk of re‑offending was very low. Importantly, the case was decided before the amendment to the Sentencing Act 2017 (SA) precluding suspension of sentences of imprisonment for serious sexual offences except in certain limited circumstances.
It is doubtful whether the matter would have been decided in the same way today. Even so, the offender in Mackay was extraordinarily fortunate to have received the benefit of such a merciful sentence. For these reasons, we consider that the decision in Mackay should be confined to its own peculiar facts.
This Court should only interfere with the sentence imposed at first instance if satisfied that the sentence is so high as to be outside the reasonable range of sentences available for this offence.
This was not a particularly lenient sentence; however, we do not consider it to be outside the reasonable range which was available to the sentencing Judge. The appellant has not demonstrated any error which would justify the intervention of this Court.
In light of our conclusion, it is not necessary to determine the correctness or otherwise of the appellant’s argument in relation to the effect of the amendments to s 96(3) to the Sentencing Act. However, it if were necessary to decide, as is evident from our comments above, we would prefer the interpretation on the construction of s 96(3) as put forward by the Director.
For these reasons, we would dismiss the appeal.
STANLEY J: I would dismiss the appeal. I agree with the joint reasons of Kelly and Parker JJ.