Henry v The Queen
[2022] SASCA 60
•22 June 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HENRY v THE QUEEN
[2022] SASCA 60
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
22 June 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - LEGISLATIVE POWERS - POWER TO ACT CONTRARY TO SEPARATION OF POWERS DOCTRINE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The applicant was convicted by different juries of two 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). While each count was particularised as constituted by various unlawful sexual acts, neither jury was asked which of the alleged unlawful sexual acts they had found proved.
The complainants at each trial, VS and HS, were the applicant’s step-daughters. Each alleged that the offending had occurred in the 1970s, when the complainants were between the ages of seven and 11 and 10 and 12 respectively.
The maximum penalty for each offence was life imprisonment. On 17 December 2018, the sentencing judge, having presided over both trials, identified starting points of 11 years and 12 years imprisonment for the two offences respectively. His Honour ordered that the second sentence be served concurrently as to six years, resulting in a total sentence of 17 years imprisonment, with non-parole fixed at the statutory minimum of 13 years, seven months and six days.
The applicant seeks permission to appeal out of time against his sentence on three grounds of appeal.
Ground 1 is a challenge to the validity of s 50(11) of the CLCA on the basis that it infringes the constitutional principle enunciated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. Section 50(11) requires that a judge, in sentencing a person convicted of an offence under s 50(1), sentence on a basis which is consistent with the verdict of the trier of fact but having regard to the unlawful sexual acts the judge has determined to be proved beyond reasonable doubt. The applicant submits that s 50(11) is invalid for the same reasons given by this Court in Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 in that it permits a judge to sentence on a basis which may be inconsistent with the findings of the jury. He further submits that s 50(11) is invalid because it purports to withdraw the capacity of the Supreme Court to review decisions of the District Court. The Attorney-General (SA) sought to intervene on this ground.
Grounds 2 and 3 involve complaints as to the adequacy of the sentencing judge’s reasons and of manifest excess respectively.
Held, per Livesey P, rejecting the challenge to s 50(11):
Appeal Ground 1:
1. By s 50(4)(c) of the CLCA, a jury is no longer required to reach agreement on which two or more acts were committed in order to be satisfied beyond reasonable doubt that there was an unlawful sexual relationship within the meaning of s 50.
2. The question of consistency between the determination made by the sentencing court and the verdict of the jury is to be assessed differently than it was at the time of Chiro v The Queen.
3. Accordingly, and unlike the approach ruled on in Question of Law Reserved (No 1 of 2018), s 50(11) neither requires nor permits a court to sentence on a basis that is inconsistent with the verdict of the jury.
4. It is not necessary to sentence on the most favourable basis open but on the determination made by the sentencing court as to which acts were proved beyond reasonable doubt.
5. Because the sentencing court must provide sentencing remarks which record the factual findings made beyond reasonable doubt, there is no reason to think that the Supreme Court is denied the capacity to exercise its jurisdiction to review for error.
Held, per Doyle JA (David JA agreeing), dismissing the application for permission to appeal on all grounds:
1. As to Ground 1, s 50 of the CLCA does not require jury unanimity as to which of the particular unlawful sexual acts have been proved beyond reasonable doubt. In determining, pursuant to s 50(11), which of the unlawful sexual acts the sentencing judge considers to have been proved beyond reasonable doubt, the judge is not required or permitted to sentence on a basis which is inconsistent with the jury’s verdict. To that extent, there cannot be said to be any impairment upon the institutional integrity of the sentencing court.
2. Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 distinguished. The offence of persistent sexual exploitation under s 50(1), as it then was, required that a jury be agreed as to at least two unlawful sexual acts committed by the accused. As there is no such requirement for unanimity in the current offence of maintaining an unlawful sexual relationship with a child, the applicant’s submission as to the invalidity of s 50(11) by analogy to that case must be rejected.
3. There is likewise no basis for the submission that s 50(11) constrains the capacity of the Supreme Court to review decisions of the District Court infected by error. The applicant’s challenge to the validity of s 50(11) of the CLCA must be rejected.
Held, per Doyle JA (Livesey P and David JA agreeing):
4. As to Ground 2, in the circumstances of this case, the sentencing remarks adequately identified both the factual basis upon which the applicant was sentenced, and the sentencing judge’s reasons for making findings to that effect.
5. As to Ground 3, the starting points adopted for VS and HS, together with the order for concurrency, were appropriate.
Sentencing Act 2017 (SA) ss 19(1), 53(1)(c), 54(1)(b); Juries Act 1927 (SA) s 57(1); Criminal Law Consolidation Act 1935 (SA) ss 50, 50(1), 50(11); Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) ss 6, 9(2), referred to.
Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400, distinguished.
AK v Western Australia (2008) 232 CLR 438; Attorney-General (NT) v Emmerson (2014) 253 CLR 393; Cheung v The Queen (2001) 209 CLR 1; Chiro v The Queen (2017) 260 CLR 425; Condon v Pompano Pty Ltd (2015) 252 CLR 38; Dinsdale v The Queen (2000) 202 CLR 321; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Hamra v The Queen (2017) 260 CLR 479; Hili v The Queen (2010) 242 CLR 520; JJP v The Queen [2021] SASCA 53; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; KBT v The Queen (1997) 191 CLR 417; Kingswell v The Queen (1985) 159 CLR 264; KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480; Ndreka v The Queen [2021] SASCA 11; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; R v CAZ [2012] 1 Qd R 440; R v D (1997) 69 SASR 413; R v De Simoni (1981) 147 CLR 383; R v Isaacs (1997) 41 NSWLR 374; R v M, DV (2019) 133 SASR 470; R v Mann (2020) 135 SASR 457; R v Morse (1979) 23 SASR 98; Savvas v The Queen (1995) 183 CLR 1; Vella v Commissioner of Police (NSW) (2019) 269 CLR 219, considered.
HENRY v THE QUEEN
[2022] SASCA 60Court of Appeal – Criminal: Livesey P, Doyle and David JJA
LIVESEY P:
Introduction
The applicant seeks permission to appeal against a sentence imposed following conviction for two 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), for which the maximum penalty is life imprisonment.
Each count concerned a step-daughter of the applicant and each was particularised by a range of unlawful sexual acts. The two counts were tried before different juries and both juries found the applicant guilty.
These reasons address two contentions made by the applicant. The first contention is that s 50(11) of the CLCA is invalid, based on Question of Law Reserved (No 1 of 2018)[1] and Kable,[2] and that the sentencing court should have, but did not, sentence the applicant on the most favourable factual basis open on the material before the court.[3]
[1] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 (Vanstone, Lovell and Hinton JJ).
[2] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable).
[3] R v De Simoni (1981) 147 CLR 383; Chiro v The Queen (2017) 260 CLR 425 (Chiro); KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480 (KMC) [6] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
The second contention is that s 50(11) is invalid because it excludes the capacity of the Supreme Court to review and grant relief in respect of a sentence imposed by the District Court that is infected by error.
For the reasons that follow, both contentions should be rejected.
Findings of fact by the sentencing court
Ordinarily, the sentencing court must determine the facts relevant to sentence.
That determination may be based on a combination of evidence led at the trial and evidence led in the course of sentencing proceedings. The findings of fact made against an offender by the sentencing judge must be determined beyond reasonable doubt.[4]
[4] Cheung v The Queen (2001) 209 CLR 1, [13]-[14] (Gleeson CJ, Gummow and Hayne JJ) citing R v Issacs (1997) 41 NSWLR 374, 377-378 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ).
The “primary constraint upon the power and duty of decision-making” in the sentencing court is that the sentencing judge must adopt a view of the facts which is consistent with the verdict of the jury.[5]
The approach in Chiro v TheQueen
[5] R v Issacs (1997) 41 NSWLR 374, 377-378 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ).
In Chiro v The Queen a majority of the High Court held that the sentencing court should ordinarily request the jury to identify the underlying acts of sexual exploitation which were found by it to be proved beyond reasonable doubt for the purposes of sentencing an offender for the offence of ‘persistent sexual exploitation of a child’, contrary to the former iteration of s 50(1) of the CLCA.[6]
[6] Chiro v The Queen (2017) 260 CLR 425 (Kiefel CJ, Bell, Keane and Nettle JJ, Edelman J dissenting).
That approach applied for essentially two reasons. The first is that the offending was “comprised of discrete underlying offences” rather than a “course of conduct”,[7] and secondly, the underlying acts of sexual exploitation were an element of the actus reus of the offence which it was for the jury to determine, not the sentencing court.[8]
[7] Chiro v The Queen (2017) 260 CLR 425, [22]-[23] (Kiefel CJ, Keane and Nettle JJ).
[8] Chiro v The Queen (2017) 260 CLR 425, [42] (Kiefel CJ, Keane and Nettle JJ).
Associated with proof of the actus reus was the requirement that the trial judge give the jury a direction requiring extended unanimity. The jury were therefore obliged to determine whether the Crown had proved beyond reasonable doubt that the accused had committed the same two or more underlying acts of sexual exploitation separated by not less than three days.[9]
[9] Chiro v The Queen (2017) 260 CLR 425, [19] (Kiefel CJ, Keane and Nettle JJ).
The plurality in Chiro held that the trial judge was required to request that the jury identify the underlying acts of sexual exploitation that were found to be proved beyond reasonable doubt, unless it was otherwise apparent to the judge which acts had been proved. Where the jury was not questioned about the basis for its verdict, the offender was required to be sentenced on the basis most favourable to the offender.[10] The High Court held that unless this approach was adopted, the sentencing court would breach the principle that an accused is not to be sentenced for an offence which the jury did not find the accused to have committed.[11]
[10] Chiro v The Queen (2017) 260 CLR 425, [52] (Kiefel CJ, Keane and Nettle JJ).
[11] Chiro v The Queen (2017) 260 CLR 425, [44] (Kiefel CJ, Keane and Nettle JJ) citing R v De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ, Mason and Murphy JJ agreeing), 395-396 (Wilson J), 406 (Brennan J).
In her separate reasons Bell J, who formed part of the majority in Chiro, explained that it was the role of the sentencing court to determine the facts relevant to sentencing subject to the constraint that that determination be consistent with the verdict of the jury. In the case of an offence contrary to s 50, the sentencing court in that case could not sentence the offender on the basis that all of the particularised acts were committed without offending the requirement that there be consistency with the verdict of the jury.[12]
[12] Chiro v The Queen (2017) 260 CLR 425, [71] (Bell J).
In Chiro the sentencing judge did not ask the jury which two or more acts it found had been committed. The sentencing judge sentenced Chiro on the basis of those facts which she was satisfied had been committed, being each of the particularised acts alleged which included but were not confined to kissing.[13] However during her summing up to the jury, the judge twice directed that it would be sufficient to prove the offence under s 50(1) if the jury were satisfied beyond reasonable doubt that Chiro had kissed the complainant on more than one occasion in circumstances of indecency. The High Court held that the sentence was therefore “not only infected by error, but also manifestly excessive”.[14]
[13] Chiro v The Queen (2017) 260 CLR 425, [15] (Kiefel CJ, Keane and Nettle JJ).
[14] Chiro v The Queen (2017) 260 CLR 425, [53] (Kiefel CJ, Keane and Nettle JJ).
The 2017 amendments
The legislative history concerning s 50 and its progenitor was examined in some detail by the High Court in Hamra v The Queen.[15]
[15] Hamra v The Queen (2017) 260 CLR 479, [22]-[27] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
In the wake of Chiro, the CLCA was amended so as to introduce a revised s 50 and an offence which is now described as ‘maintaining an unlawful sexual relationship with a child’.
The Statute Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) (the Amending Act) removed the requirement for proof of two or more unlawful sexual acts over a period of not less than three days. Under s 50(2) of the present provision, an unlawful relationship is defined as one where an adult engages in two or more unlawful sexual acts with or towards a child over any period of time.
Of relevance to this appeal is the operation and effect of s 50(4)(c) of the present iteration of s 50:
if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
Also relevant to this appeal is the operation and effect of s 50(11) of the present iteration of s 50:
A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).
The transitional provisions of the Amending Act address cases where a sentence had already been imposed (s 9(1) of the Amending Act) as well as cases where an offender had been convicted but not yet sentenced (s 9(2) of the Amending Act). The latter provision was held invalid by the Court of Criminal Appeal in Question of Law Reserved (No 1 of 2018) because it impaired the institutional integrity of the court, infringing the Kable principle.[16]
[16] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 (Vanstone, Lovell and Hinton JJ); Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
A challenge to the former transitional provision was mounted in KMC v Director of Public Prosecutions (SA), but the High Court found that s 9(1) of the Amending Act was not engaged because the sentencing judge in that case had made no finding as to which of the alleged underlying acts of sexual exploitation were proved beyond reasonable doubt.[17] Section 9(1) was drafted on the assumption that judges who had passed sentence for an offence against the former iteration of s 50 had done so in the same manner as the sentencing judge in Chiro. The High Court held that the sentencing judge in KMC had not sentenced in that manner.[18]
[17] KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480, [17]ff (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[18] KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480, [11] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
By reason of s 50(4)(c) of the present provision, the jury is no longer required to reach agreement on which two or more acts were committed by an accused in order to be satisfied beyond reasonable doubt that there was an unlawful sexual relationship within the meaning of s 50 of the CLCA.
By s 50(1), an adult who maintains “an unlawful sexual relationship with a child” is guilty of an offence carrying a maximum penalty of imprisonment for life.
By s 50(3), before an adult can be convicted of an unlawful sexual relationship offence,[19] the trier of fact must be satisfied beyond reasonable doubt “that the evidence establishes that an unlawful sexual relationship existed”.
[19] By s 50(12), an “unlawful sexual relationship offence” is defined as an offence against s 50(1).
By s 50(2), the term “unlawful sexual relationship” is defined to mean “a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period”.
Because the trier of fact must make a finding about the existence of an unlawful sexual relationship, and if that is a jury it is no longer required to be agreed about which of the 2 or more unlawful sexual acts alleged constitute the unlawful sexual relationship, the jury may well reach agreement about the existence of the unlawful sexual relationship without also being in agreement as to which 2 or more unlawful sexual acts were engaged in with or towards a child over the particularised period of time.
In consequence, the question of consistency between the determination made by the sentencing court and the verdict of the jury is to be assessed differently than it was at the time of Chiro and that assessment must now be made by reference to s 50(4)(c) and s 50(11) of the CLCA.
Apart from sentencing consistently with the verdict that there was an unlawful sexual relationship, it is for the sentencing court to determine the general nature or character of the unlawful sexual acts which were proved beyond a reasonable doubt.[20] Contrary to the contention of the applicant in this case, the sentencing court is not required to evaluate the verdict of the jury in order to be satisfied as to which two or more unlawful sexual acts were committed.
[20] See the approaches taken in R v CAZ (2011) 220 A Crim R 160, [53]-[55] (Fraser JA, with whom Chesterman and White JJA agreed); R v M, DV (2019) 133 SASR 470, [18] (Kourakis CJ, with whom Lovell J agreed); JJP v The Queen [2021] SASCA 53, [147] (Doyle JA, with whom Kelly P and Bleby JA agreed).
It follows that s 50(11), unlike s 9(2) of the Amending Act considered in Question of Law Reserved (No 1 of 2018), neither requires nor permits a sentencing court to sentence on a basis that is inconsistent with the verdict of the jury. It follows that the basis upon which the Court of Criminal Appeal found that s 9(2) impermissibly interfered with the adjudication and punishment of criminal guilt by the court such as to offend the Kable principle is absent in this case.[21]
[21] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400, [161] (Hinton J, with whom Lovell J agreed).
Accordingly, and unlike the approach which was ruled on in Question of Law Reserved (No 1 of 2018), the sentencing court is no longer required to sentence based on its determination as to which acts of sexual exploitation were proved beyond reasonable doubt, regardless whether these were the same acts of sexual exploitation which the jury found were proved beyond reasonable doubt.[22]
[22] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400, [34]-[39] (Vanstone J), [140]-[141] (Hinton J, with whom Lovell J agreed).
Section 50(11) does not re-allocate responsibility for determining the actus reus from the jury to a combination of Parliament and the sentencing court, retrospectively and part way through the prosecution, empowering the sentencing court to interpret the verdict of the jury in a way which cannot be shown to be consistent with the basis for the verdict of the jury.[23] Rather, and as explained in Cheung v The Queen, s 50(11) requires that the sentencing court determine beyond reasonable doubt the facts upon which sentence is to be passed, doing so in a manner consistent with the verdict of the jury.
[23] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400, [38]-[43] (Vanstone J).
Accordingly, it was not necessary to sentence the applicant on the most favourable factual basis open, but on the determination made by the sentencing court as to which of the unlawful sexual acts were proved beyond reasonable doubt.[24]
[24] Chiro v The Queen (2017) 260 CLR 425, [52] (Kiefel CJ, Keane and Nettle JJ); KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480, [6] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
The applicant’s second contention is that s 50(11) excludes the capacity of the Supreme Court to review and grant relief in respect of a sentence imposed by the District Court that is infected by error.
This contention must be rejected. Because the sentencing court must provide sentencing remarks which record the factual findings made by the sentencing court beyond reasonable doubt, there is no reason to think that the Supreme Court is denied the capacity to exercise its jurisdiction to conduct a review of any sentence imposed that is said to be affected by error.
Conclusions
In my opinion, the applicant’s challenge to the validity of s 50(11) of the CLCA based on Question of Law Reserved (No 1 of 2018) and Kable must be rejected. Likewise, the applicant’s contention that the Supreme Court is denied the capacity to exercise its jurisdiction to conduct a review of any sentence imposed must also be rejected.
As the reliance placed on Question of Law Reserved (No 1 of 2018) is misplaced, this case provides no occasion to consider whether that decision should be over-ruled.
I agree with Doyle JA, for the reasons that he gives, that in the particular circumstances of this case, having regard to the way in which it was conducted and fought, the reasons of the sentencing court were not inadequate and the sentence imposed was not manifestly excessive.
I agree with the orders proposed.
DOYLE JA: The applicant was charged with two counts of maintaining an unlawful sexual relationship with his two step-daughters, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). Each count was particularised as constituted by various unlawful acts.
The trials in relation to the two counts were conducted separately before different juries. Both juries returned majority verdicts of guilty, but neither was asked which of the alleged unlawful sexual acts they had found proved.
The applicant was sentenced by the Judge who had presided over both trials. Pursuant to s 50(11) of the CLCA, his Honour found that all of the unlawful sexual acts were proved beyond reasonable doubt. Having identified notional starting points of 11 years and 12 years imprisonment respectively for the two offences, the sentencing judge ordered that the second be served concurrently as to six years, resulting in an aggregate head sentence of 17 years imprisonment. His Honour fixed a non-parole period of 13 years, seven months and six days.
The applicant seeks permission to appeal out of time on three grounds:
·first, that s 50(11) of the CLCA is invalid and the sentencing judge failed to sentence the applicant on the most favourable factual basis (as required by Chiro v The Queen[25] and R v De Simoni[26]);
·secondly, that the sentencing judge erred in failing to provide adequate reasons for sentence; and
·thirdly, that the sentence imposed was manifestly excessive, taking into account the applicant’s “established rehabilitation” and his old age and poor health. The applicant further contends that there ought to have been a greater degree of concurrency or allowance for totality in the sentence imposed.
[25] Chiro v The Queen (2017) 260 CLR 425.
[26] R v De Simoni (1981) 147 CLR 383.
I shall return to the application for an extension of time at the conclusion of these reasons.
Before addressing each of the three grounds directly, it is appropriate to commence by providing an overview of the two offences of which the applicant was convicted.
Background
The applicant was tried in January 2018 before a judge and jury on an Information charging one count of maintaining an unlawful sexual relationship (MUSR) with his step-daughter, VS. The offending was alleged to have occurred between 1 January 1976 and 31 December 1979, when VS was between seven and 11 years of age. The charge was particularised as including the following acts (each of which was alleged to have occurred on more than one occasion):
(a) inserting his penis into her vagina;
(b) inserting his finger into her vagina;
(c) causing her to perform fellatio on him;
(d) performing cunnilingus on her;
(e) touching her breasts; and
(f) touching her vagina.
The jury returned a majority guilty verdict in respect of this count.
The applicant was then tried in November 2018, before the same judge but a different jury, on an Information charging one count of MUSR with another of his step-daughters, HS, the sister of VS. The offending was alleged to have occurred between 1 January 1974 and 15 March 1976, when HS was between 10 and 12 years of age. The charge was particularised as including the following acts:
(a) inserting his penis into her vagina on more than one occasion; and
(b) inserting his finger into her vagina on more than one occasion.
The jury returned a majority guilty verdict in respect of this count.
In December 2018, the applicant was sentenced for both offences. The sentencing judge, who had presided over both trials, commenced his summary of the sexual abuse relevant to each offence by summarising the domestic context in which it occurred. His Honour accepted the prosecutor’s submission that the evidence established that the applicant’s offending occurred in the context of a household dominated and controlled by a violent and cruel man, which coloured how his step-daughters responded to the sexual abuse that he regularly perpetrated upon them. The sentencing judge then summarised the offending in the following terms:
H was aged between 10 and 12 years when you sexually abused her while living at each of the towns the family lived in between 1974 and 1976 and before she returned to live with her grandparents in Victoria. You would have been aged between 23 and 25 years during that time. The sexual acts perpetrated upon H involved you inserting your penis into her vagina and inserting your finger into her vagina. You performed those sexual acts upon her on a regular basis over that period of time. The evidence also revealed that you had already sexually abused H while living in Victoria. You cannot be punished for that sexual abuse as it did not form part of the charge. It is, nevertheless, relevant to show when you first abused H and how it was that you continued to abuse her after she arrived in South Australia to live with the family.
V was aged between seven and 11 years when you sexually abused her when the family was living in Whyalla between the middle of 1976 and up until the end of 1979 when V returned to live in Victoria. During that time you were aged between 26 and 29 years. V described a number of different sexual acts which you perpetrated upon her, including inserting your penis into her vagina; inserting your fingers into her vagina; causing her to suck your penis; of you licking her vagina and touching her breasts and vagina. Apart from detailing the regularity of those sexual acts, V was able to vividly recall a number of specific incidents of sexual abuse which she gave detailed and compelling evidence of.
His Honour was satisfied beyond reasonable doubt that the applicant committed all of the sexual acts alleged against him by HS and VS, and that it was appropriate to sentence the applicant on that basis:
Pursuant to s. 50(11) of the Criminal Law Consolidation Act 1935, I indicate that given the evidence of H and V and how each trial was conducted, I am of the view the verdicts of each jury reflect an acceptance by them beyond a reasonable doubt that you committed all of the sexual acts alleged against you by H and V. I am satisfied beyond a reasonable doubt and consistent with the verdict of each jury as I have said, of the evidence given by H and V in its entirety as it related to your violent and cruel disposition and of the nature and extent of the sexual acts you perpetrated upon each of them.
After then setting out various other matters relevant to the sentencing process (elaborated upon below), and having earlier noted that the maximum penalty for each offence was life imprisonment, the sentencing judge identified starting points of 11 years and 12 years imprisonment respectively for the two offences. His Honour then ordered that the second sentence be served concurrently as to six years, resulting in an aggregate sentence of 17 years imprisonment. He fixed a non-parole period of 13 years, seven months and six days, being the statutorily determined minimum non-parole period given the applicant’s status as a serious repeat offender.[27] The sentence was backdated for a period of 16 days to reflect the time spent in custody following his initial arrest.
[27] Sentencing Act 2017 (SA), ss 53(1)(c) and 54(1)(b).
Ground 1: the validity of s 50(11) of the CLCA
Section 50(11) of the CLCA requires that, in sentencing a person convicted of the MUSR offence, the sentencing judge must do so consistently with the verdict of the trier of fact (here, the jury), but having regard to the sexual acts determined by the sentencing judge to have been proved beyond reasonable doubt. More particularly, s 50(11) provides:
A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).
This subsection was included within amendments to s 50 of the CLCA made in 2017 to address the consequences for the sentencing of offenders of the High Court’s decision in Chiro v The Queen.[28] The 2017 amendments included certain transitional provisions which were held by this Court in Question of Law Reserved (No 1 of 2018)[29] to be invalid on the ground that that they impaired the institutional integrity of the Court and thereby infringed the Kable[30] principle.
[28] Chiro v The Queen (2017) 260 CLR 425.
[29] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400; [2018] SASCFC 128.
[30] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
In challenging the validity of s 50(11) of the CLCA, the applicant in the present case relies upon the decision in Question of Law Reserved (No 1 of 2018), and contends that the reasoning in that case applies with equal force to s 50(11).
In defending the appeal, the respondent submits that Question of Law Reserved (No 1 of 2018) is distinguishable. The Attorney-General for South Australia intervened on appeal. The submissions put by the Solicitor-General, who appeared for the Attorney-General, were confined to Ground 1. He supported the respondent’s submission that Question of Law Reserved (No 1 of 2018) is distinguishable but also put a submission, in the alternative, that Question of Law Reserved (No 1 of 2018) was wrongly decided.
I propose to commence my analysis of this ground of appeal by summarising the decision of the High Court in Chiro v The Queen, the amendments that were made to s 50 of the CLCA in 2017 in response to that decision, and the decision of this Court in Question of Law Reserved (No 1 of 2018). I will then address the submissions put by the appellant as to the invalidity of s 50(11) of the CLCA.
Chiro v The Queen
Chiro v The Queen[31] concerned an appeal against conviction and sentence for the offence of persistent sexual exploitation (PSE), contrary to s 50(1) of the CLCA as in force prior to the 2017 amendments to the CLCA. That earlier version of s 50(1) provided that an adult person who, over a period of not less than three days, committed more than one act of sexual exploitation of a particular child was guilty of the PSE offence.
[31] Chiro v The Queen (2017) 260 CLR 425.
The appeal relevantly raised two issues of common law principle. The first concerned the proper exercise of the discretion to ask questions of a jury about the unlawful sexual acts it found proved as the basis for its guilty verdict in relation to the PSE offence. The second concerned the appropriate factual basis for sentencing for the PSE offence where the unlawful sexual acts the jury found to have been committed are unknown.
As to the first, a majority of the High Court held that when an defendant is tried before a jury for the PSE offence under s 50(1) of the CLCA, as it then stood, and the jury returns a general verdict of guilty, the judge should, for the purposes of sentencing, “request that the jury identify the underlying acts of sexual exploitation that were found to be proved unless it is otherwise apparent to the Judge which acts of sexual exploitation the jury found to be proved”.[32]
[32] Chiro v The Queen (2017) 260 CLR 425 at [1] (Kiefel CJ, Keane and Nettle JJ), [67] (Bell J).
As to the second, the majority enunciated a common law solution to the problem of sentencing for the PSE offence where “the judge does not or cannot get the jury … to identify which of the alleged acts of sexual exploitation the jury found to be proved”.[33] The solution was a requirement that the judge sentence “on the basis most favourable to the offender”.[34] This solution involved an exception to the orthodox position recognised in Cheung v The Queen,[35] that a sentencing judge can make their own findings as to aggravating and mitigating circumstances, provided that those facts are consistent with the jury’s verdict, and that any facts adverse to the defendant are proved beyond reasonable doubt.
[33] Chiro v The Queen (2017) 260 CLR 425 at [52] (Kiefel CJ, Keane and Nettle JJ).
[34] Chiro v The Queen (2017) 260 CLR 425 at [52] (Kiefel CJ, Keane and Nettle JJ), [74] (Bell J).
[35] Cheung v The Queen (2001) 209 CLR 1 at [14] (Gleeson CJ, Gummow and Hayne JJ); Chiro v The Queen (2017) 260 CLR 245 at [52] (Kiefel CJ, Keane and Nettle JJ).
The High Court’s solution was consequent upon its intermediate conclusion that, as a matter of construction, Parliament had signified by the form of the PSE offence under s 50(1) that the offender was to be sentenced on the basis of the unlawful sexual acts found by the jury to have been proved beyond reasonable doubt.[36] Two key strands of reasoning underpinned that intermediate conclusion.
[36] Chiro v The Queen (2017) 260 CLR 245 at [44], [51] (Kiefel CJ, Keane and Nettle JJ), [73] (Bell J).
The first strand of the Court’s reasoning was that s 50(1) required the jury to agree upon the same two or more unlawful sexual acts it found proved beyond reasonable doubt.[37] This requirement for extended jury unanimity followed as a matter of statutory implication from the Parliament having provided that the actus reus of the PSE offence was the doing of two or more acts of sexual exploitation of a child over the course of three or more days (as opposed to it being a true course of conduct offence).[38] This feature of extended jury unanimity distinguished the PSE offence from other offences to which the orthodox common law position applied.[39]
[37] Chiro v The Queen (2017) 260 CLR 245 at [19] (Kiefel CJ, Keane and Nettle JJ), [59] (Bell J).
[38] Chiro v The Queen (2017) 260 CLR 245 at [19], [23], [51]-[52] (Kiefel CJ, Keane and Nettle JJ); see also KBT v The Queen (1997) 191 CLR 417 at 422 (Brennan CJ, Toohey, Gaudron and Gummow JJ).
[39] See for example, manslaughter (R v Isaacs (1997) 41 NSWLR 374), and being knowingly concerned in the importation of a controlled drug (Cheung v The Queen (2001) 209 CLR 1); see also Chiro v The Queen (2017) 260 CLR 245 at [22], [52] (Kiefel CJ, Keane and Nettle JJ), [70]-[71] (Bell J).
The second strand of reasoning was the relevance of the principle recognised in R v De Simoni[40] that “no-one should be punished for an offence of which he has not been convicted”.[41] Consistently with that principle, the sentence to be imposed for a PSE offence was to be determined by reference to those sexual offences which the proven acts of sexual exploitation would have constituted if charged separately; and not by reference to any offence which the jury did not find the accused to have committed.[42]
[40] R v De Simoni (1981) 147 CLR 383 at 389 (Gibbs CJ).
[41] Chiro v The Queen (2017) 260 CLR 245 at [72] (Bell J); see also at [26] (Kiefel CJ, Keane and Nettle JJ).
[42] Chiro v The Queen (2017) 260 CLR 245 at [44] (Kiefel CJ, Keane and Nettle JJ).
The Amending Act
The High Court summarised the legislative history of s 50 of the CLCA, and the legal context in which it was amended, in Hamra v The Queen.[43] It is sufficient for present purposes to note that, in response to the High Court’s decision in Chiro v The Queen, Parliament passed the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) (the Amending Act). The Amending Act was enacted, and came into force, on 24 October 2017.
[43] Hamra v The Queen (2017) 260 CLR 479 at [18]-[26] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); see also JJP v The Queen [2021] SASCA 53 at [106]-[143] (Doyle JA, Kelly P and Bleby JA agreeing).
By s 6, the Amending Act repealed the former version of s 50 of the CLCA and substituted a new version of that section. The new s 50(1) enacted the offence of maintaining an unlawful relationship with a child, which I have referred to in these reasons as the MUSR offence:
50—Unlawful sexual relationship with child[44]
[44] As subsequently amended.
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3) For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(4) However—
(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and
(c) if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(5)The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(6) This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section.
(7) A person may be charged on a single indictment with, and convicted of and punished for, both—
(a) an offence of maintaining an unlawful sexual relationship with a child; and
(b) 1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.
(8) Except as provided by subsection (7)—
(a) a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and
(b) a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
(9) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.
(10) For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
(11) A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).
(12) In this section—
…
sexual offence means—
(a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b) an attempt to commit, or assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a previous enactment;
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence;
unlawful sexual relationship offence means an offence against subsection (1).
…
It will be necessary to return to some aspects of this section in more detail later in these reasons. However, by way of overview, it is relevant to observe that under s 50(1) the MUSR offence is constituted by the maintenance of an unlawful sexual relationship with a child, and that under s 50(2) an unlawful sexual relationship is defined as one in which an adult “engages in 2 or more unlawful sexual acts” with or towards a child over any period of time. Subsection 50(12) addresses what is meant by an unlawful sexual act, and ss 50(4) and (5) address the relaxation of the particularity with which those acts must be alleged and proved. Subsection 50(4)(c) removes the requirement for extended jury unanimity in relation to the underlying unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
Under the Amending Act, the new s 50 became applicable in all cases where the defendant had not been convicted or sentenced as at the commencement of that Act. The transitional provisions under that Act also addressed sentences for defendants already convicted of the PSE offence prior to the commencement of the Amending Act. They addressed two categories of cases: cases where a sentence had already been imposed (s 9(1)); and cases where an offender had been convicted by not yet sentenced (s 9(2)). It was the latter provision that was held invalid in Question of Law Reserved (No 1 of 2018).
The Kable principle
The Kable principle has been the subject of detailed treatment and refinement in a number of High Court cases. There is no need for me to undertake any detailed explanation of the constitutional foundation for the principle, or to summarise the authorities in any detail. It is sufficient for me to identify the principle and some of the key considerations in its application.
As French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ summarised in Attorney-General (NT) v Emmerson:[45]
The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by the State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.
[45] Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
The Kable principle is concerned with the State courts maintaining their essential character as courts which are fit to exercise the judicial power of the Commonwealth. In Condon v Pompano Pty Ltd,[46] French CJ identified some of the defining characteristics of such courts:[47]
The "institutional integrity" of a court is said to be distorted if it no longer exhibits in some relevant aspect the defining characteristics which mark a court apart from other decision-making bodies. The defining characteristics of courts include:
• the reality and appearance of decisional independence and impartiality;
• the application of procedural fairness;
• adherence as a general rule to the open court principle;
• the provision of reasons for the courts' decisions.
Those characteristics are not exhaustive.
[46] Condon v Pompano Pty Ltd (2015) 252 CLR 38.
[47] Condon v Pompano Pty Ltd (2015) 252 CLR 38 at [67]-[68] (French CJ) (omitting citations).
In North Australian Aboriginal Justice Agency Ltd v Northern Territory,[48] French CJ, Kiefel and Bell JJ listed several propositions established by the authorities governing the application of the Kable principle:[49]
1.A State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system.
2.The term "institutional integrity" applied to a court refers to its possession of the defining or essential characteristics of a court including the reality and appearance of its independence and its impartiality.
3.It is also a defining characteristic of courts that they apply procedural fairness and adhere as a general rule to the open court principle and give reasons for their decisions.
4.A State legislature cannot, consistently with Ch III, enact a law which purports to abolish the Supreme Court of the State or excludes any class of official decision, made under a law of the State, from judicial review for jurisdictional error by the Supreme Court of the State.
5.Nor can a State legislature validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court.
6.A State legislature cannot authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with the court's institutional integrity or which would confer on the court a function (judicial or otherwise) incompatible with the role of the court as a repository of federal jurisdiction.
7.A State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member.
[48] North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569.
[49] North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at [39] (French CJ, Kiefel and Bell JJ) (omitting citations).
More recently, in Vella v Commissioner of Police (NSW),[50] Bell, Keane, Nettle and Edelman JJ said:[51]
Although it is only extreme legislation that will substantially impair the institutional integrity of a State court, the boundaries of the Kable principle are not sharp. The contours of the categories where State legislation will substantially impair a court's institutional integrity will necessarily emerge slowly. But the categories must develop in a principled, coherent, and systematic way rather than as evaluations of specific instances.
[50] Vella v Commissioner of Police (NSW) (2019) 269 CLR 219.
[51] Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at [56] (Bell, Keane, Nettle and Edelman JJ).
Question of Law Reserved (No 1 of 2018)
The offender in Question of Law Reserved (No 1 of 2018),[52] Mr Hamra, had been convicted by a jury of the PSE offence under s 50 (as it was prior to the enactment of the Amending Act). After the jury delivered its verdict, but before Mr Hamra was sentenced, s 9(2) of the Amending Act was introduced. It provided:
(2)Where, after the commencement of this section, a person is to be sentenced for an offence against section 50 of the Criminal Law Consolidation Act 1935 (as in force before the commencement of section 6 of this Act) the following provisions apply:
(a) a verdict of guilt handed down by the trier of fact in relation to the offence is taken to be, and always to have been, a finding by the trier of fact that the person is guilty of the acts of sexual exploitation comprising the course of conduct alleged by the information;
(b) notwithstanding paragraph (a), in sentencing the person for the offence, the sentencing court may determine which alleged acts of sexual exploitation the sentencing court finds proved beyond a reasonable doubt and may disregard any acts of sexual exploitation that the sentencing court is not satisfied were proved beyond a reasonable doubt;
(c) for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining which acts of sexual exploitation, or which particulars of the offence as alleged, the trier of fact found to have been proved beyond a reasonable doubt and, unless it has so determined in accordance with paragraph (b), need not sentence the person on the view of the facts most favourable to the person.
[52] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400.
The Court unanimously held that s 9(2) impaired the institutional integrity of the Court and was invalid.
Vanstone J commenced her analysis of the validity of s 9(2) by explaining its operation:[53]
It is instructive to ask the question what does s 9(2) do. The answer can be framed as follows. The sub-section takes a finding of guilt by a jury of a s 50(1) offence – the actus reus of which must be within the particularised acts but is not revealed by the verdict – and deems it to be a finding of guilt (sic) with respect to all the particularised acts. It does so subject to the sentencing court deciding that not all the acts alleged were found proved.
Even if it is assumed that the sentencing judge must, as opposed to may, determine which acts are proved, the provision effects a transfer or reallocation of responsibility for determining the actus reus of the offence from the jury to a combination of the Parliament and the sentencing court.
[53] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [34]-[35] (Vanstone J).
After setting out the list of propositions from the reasons of French CJ, Kiefel and Bell JJ in North Australian Aboriginal Justice Agency Ltd v Northern Territory extracted earlier in these reasons, Vanstone J reasoned:[54]
In my opinion propositions numbered two and five have particular relevance in this context. The legislative deeming of the verdict to involve a finding of guilt of all alleged acts, even though subject to the discretion given in s 9(2)(b), seems to me to impact upon the reality and appearance of the court’s independence and impartiality. Given that it is for the jury, as an organ of the court, to determine what elements of the offence are proved, a presumption that all are proved, even overlayed by a judicial discretion to make a fresh determination of the very questions which were addressed by the jury, must detract from the reality and appearance of the court’s independence and impartiality. The same may be said in relation to proposition five. Section 9(2) has the effect of altering the course of a trial that has already been commenced and has reached a conclusion, by the interposition of a legislative form of deeming. Section 9(2) must contemplate that a determination of the jury as to which of the alleged acts are proved is transformed into a different decision made by the judge. In my view this can only occur by way of an impermissible executive intrusion into the processes and decisions of the court by the State legislature. The reallocation from the jury to a combination of the Parliament and the sentencing court of responsibility for the determination of the actus reus, amounting to a retrospective reordering of the court’s processes, amounts to a substantial interference with the judicial process such as to impair the institutional integrity of the court.
While s 9(2) will only affect a small number of cases, including the defendant’s, those will be cases where a verdict has been delivered, but a sentence not imposed. However, the force of s 9 cannot be characterised as being confined to sentence. The provision is concerned with the meaning of the verdict and, retrospectively, lays the verdict open to a fresh interpretation and one quite possibly different from the factual basis on which it originally rested. In that way it works as an alteration to the division of responsibility between judge and jury with respect to the determination of guilt and sentence, part way through the prosecution, constituting an interference in the process of determination of guilt and sentencing in particular cases.
[54] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [38]-[39] (Vanstone J).
After addressing some of the arguments put by counsel for the respondent in that case, Vanstone J concluded her reasons with the following:[55]
Although I could accept Dr Bleby’s argument that the wording of s 9(2)(a) merely attributes a presumptive factual basis for sentence and does not effect a legislative finding of guilt, I cannot accept the further argument that such a basis is necessarily consistent with the verdict returned, because that seems to deny altogether the force of the decision in Chiro. However, the vice I see is, not the legal fiction created by s 9(2)(a) which is always subject to ss (2)(b), but the power given to the judge by both sub-paragraphs to interpret the verdict in a way which cannot be shown to be consistent with the basis of the verdict and to impose sentence for an offence the actus reus of which it cannot be shown the jury found proved. This does, contrary to Dr Bleby’s argument, purport to alter or convert the jury’s verdict.
Conclusion
In my opinion s 9 of the Amending Act is such as to confer upon the court a function or power which substantially impairs its institutional integrity and effects an impermissible executive intrusion into the processes and decisions of the court. I find that it is invalid.
[55] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [43]-[44] (Vanstone J).
Hinton J (with whom Lovell J agreed) described the operation of s 9(2) in the following terms:[56]
Section 9(2) alters the role that the jury plays in the exercise of judicial power by the District Court. Under s 9(2) the jury remains central to the determination of guilt and there remains a link between the verdict and sentence insofar as it remains the case that the process provided for in s 9(2) is triggered by the jury verdict, but as set out earlier in these reasons, the sentencing court is no longer confined to sentencing on a basis that is consistent with the jury’s verdict. Where the power to punish exercisable by the sentencing court was bounded by the verdict of the jury, that verdict is now no more than a trigger for the court to determine which of the acts of sexual exploitation particularised were proven to the court’s satisfaction beyond reasonable doubt.
Importantly, in Mr Hamra’s case, s 9(2) operates where the judicial power has already been deployed in the usual manner to determine both guilt and the acts of sexual exploitation for which Mr Hamra is to be punished. The outcome of that exercise of judicial power is that Mr Hamra was to be punished in accordance with the High Court’s decision in Chiro because the jury was not asked which acts of sexual exploitation it was agreed had been proved beyond reasonable doubt. However, s 9(2), in effect, instructs a sentencing judge to ignore the previous determination of those acts of sexual exploitation and repeat the exercise without the involvement of the jury.
[56] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [140]-[141] (Hinton J).
In determining whether s 9(2) offended the Kable principle, Hinton J commenced by observing that s 9(2) did not result in a directed outcome, and was a law of general application:[57]
The question is whether s 9(2) requires or empowers the District Court to do something that is substantially inconsistent or incompatible with the continuing subsistence in every aspect of that Court’s judicial role, of its defining characteristics as a court. In my view, construing s 9(2)(b) as I have, the operation of s 9(2)(a) does not result in a directed outcome. Section 9(2)(a) operates as a starting point that will always be ameliorated by s 9(2)(b) if less than all acts of sexual exploitation particularised are not proven to the satisfaction of the sentencing court beyond reasonable doubt. Further, although as a matter of practical reality s 9(2) will likely only apply to a small number of people, it is a law of general application that is capable of having an ongoing application. Its likely limited application does not result in the sentencing court performing a function that is repugnant to or incompatible with the institutional integrity of that court.
[57] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [160] (Hinton J).
In Hinton J’s view, the critical issue was whether s 9(2) merely took the jury’s verdict as a factum triggering a future consequence, or impermissibly interfered with the adjudgment and punishment of criminal guilt by the court such as to offend the Kable principle.[58] According to Hinton J, while it might be said that, as a matter of form, s 9(2) left the jury’s verdict intact, as a matter of substance, the task required by s 9(2) (namely, proof to the satisfaction of the sentencing court beyond reasonable doubt) involved a repetition of the task undertaken at trial.[59] Further, it involved a repetition of that task without affording Mr Hamra the same protections inherent in a trial by jury.[60]
[58] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [161] (Hinton J).
[59] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [169]-[170] (Hinton J).
[60] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [172] (Hinton J).
Hinton J articulated his conclusion of invalidity in the following terms:[61]
That s 9(2) seeks to overcome the outcome in Chiro is plain. The intention is to ensure that a person convicted by a jury of the persistent sexual exploitation of a child in circumstances where the jury is not asked which acts of sexual exploitation particularised in the charge it agreed were proven, is not sentenced on the version of the facts most favourable to them unless that version coincides with the findings of the sentencing court beyond reasonable doubt. The practical effect is that the initial exercise of judicial power, which sets the boundary to the subsequent exercise of judicial power to punish, is, in that respect, dispensed with.
Earlier in these reasons I have referred to the importance of the participation of ordinary members of the community in the administration of criminal justice to the legitimacy of the judicial process and the exercise of judicial power. In my view that legitimacy is substantially undermined where a law directs a court that has adjudged, after a trial by jury, the extent of an accused’s liability to punishment, to put that adjudgment aside, save in form, and repeat the exercise without a jury and the protections a jury provides in order that a different basis for punishment be determined. The measure may be popular, but its pursuit is obtained at a high price for the administration of criminal justice.
AEU and Plaut v Spendthrift Farm Inc concerned the intersection of laws and the exercise of judicial power in constitutional contexts different to that in which the Kable principle operates. Nonetheless, in my view, there can be little greater threat to the institutional integrity of the District Court than a law of the State that requires that Court to re-try a question that has already been resolved by the Court because the outcome as determined in accordance with the law is unpalatable to the legislature.
For these reasons, in my view the function conferred by s 9(2) draws the District Court into a process antithetical to the exercise of judicial power and is incompatible with that Court’s constitutionally mandated position.
[61] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [173]-[176] (Hinton J).
There are undoubtedly differences of detail and emphasis between the reasons of both Vanstone J and Hinton J. However, it seems to me that an essential aspect of the reasoning of both is that s 9(2) permitted the sentencing judge to sentence on a basis that was inconsistent with the jury’s verdict.[62]
[62] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [43] (Vanstone J), [140] (Hinton J).
Vanstone J focused upon the operation of s 9(2) in permitting the jury’s determination of which of the alleged acts had been proved to be “transformed into a different decision made by the judge.”[63] Her Honour also emphasised that the effect of s 9(2) was to not merely reallocate responsibility for determining the actus reus from the jury to a combination of Parliament and the sentencing judge, but to do so retrospectively, and part way through the prosecution, and in a way that laid the verdict open to “a fresh interpretation and one quite possibly different from the factual basis on which it originally rested.”[64] The fact the legislation empowered the sentencing judge “to interpret the verdict in a way which cannot be shown to be consistent with the basis of the verdict”[65] was critical to her Honour’s reasoning.
[63] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [38] (Vanstone J).
[64] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [38]-[39] (Vanstone J).
[65] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [43] (Vanstone J).
It is true that Hinton J’s reasoning (with which Lovell J agreed) was potentially broader than this. On his Honour’s reasoning, the incompatibility of the function conferred upon the sentencing court by s 9(2) stemmed from its requiring that the sentencing court dispense with the initial exercise of judicial power that had already occurred at the trial, and, in effect, “repeat that exercise” and “re-try a question that has already been resolved.”[66] But included within the matters that his Honour considered to be of concern in this legislative intrusion into the criminal process was that the sentencing court was “no longer confined to sentencing on a basis that is consistent with the jury’s verdict.”[67]
[66] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [173]-[175] (Hinton J).
[67] Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 at [140] (Hinton J).
I shall return to the notion of inconsistency with the jury’s verdict later in these reasons when distinguishing Question of Law Reserved (No 1 of 2018).
The construction of s 50 of the CLCA
The first step in assessing the constitutional validity of s 50 is one of statutory construction.[68]
[68] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at [11] (Gummow, Hayne, Heydon and Kiefel JJ).
Following the decisions of this Court in R v M, DV[69] and R v Mann,[70] the proper construction of s 50 is relatively settled. The actus reus of the MUSR offence has two elements.
[69] R v M, DV (2019) 133 SASR 470.
[70] R v Mann (2020) 135 SASR 457.
The first element is the existence and maintenance of a relationship between an adult and a child.[71] The categories of relationship are not closed; it need not be sexual; and its existence may be a matter of fact and degree.[72] If the finder of fact is a jury, the jurors must unanimously[73] agree as to the existence and maintenance of the relationship (while the evidence on which they come to that conclusion may vary between them).[74]
[71] CLCA, s 50(1); R v M, DV (2019) 133 SASR 470 at [1] (Kourakis CJ, Lovell J agreeing).
[72] R v Mann (2020) 135 SASR 457 at [26], [31] (Kourakis CJ, Kelly and Peek JJ agreeing).
[73] Or by majority after four hours: Juries Act 1927 (SA), s 57(1).
[74] R v M, DV (2019) 133 SASR 470 at [4] (Kourakis CJ, Lovell J agreeing); R v Mann (2020) 135 SASR 457 at [15] (Kourakis CJ, Kelly and Peek JJ agreeing).
The second element is that the adult corrupted the relationship by engaging in two or more unlawful sexual acts with the child.[75] Further, by reason of the definition of “unlawful sexual act” in s 50(12) of the CLCA, it is apparent that this requires proof of two or more acts that constitute a sexual offence of the type specified (or would have constituted such an offence if particulars of the time and place at which the act took place were sufficiently particularised). As such, ss 50(1), (2), (3) and (12) operate in combination to incorporate within the actus reus of the MUSR offence the elements of the sexual offences from the CLCA listed in the s 50(12) definition of “sexual offence”.[76]
[75] CLCA, ss 50(2) and (3): R v M, DV (2019) 133 SASR 470 at [1], [10], [16] (Kourakis CJ, Lovell J agreeing).
[76] JJP v The Queen [2021] SASCA 53 at [145], [157] (Doyle JA, Kelly P and Bleby JA agreeing).
In JJP v The Queen I expressed the view, to which I adhere, that while the above analysis means that the MUSR is a single offence, it is not a course of conduct offence in the true or strict sense:[77]
It is clear that s 50 creates a single offence. Further, given the expression of the actus reus in the current version of s 50(1), the offence may be described as a course of conduct or relationship offence. Certainly the articulation of the actus reus in the current version of s 50(1) is in contradistinction to the articulation of the actus reus in the former version of s 50(1), which involved direct reference to the acts of sexual exploitation that constituted the offence. However, for the reasons set out in the preceding paragraph, s 50(1) of the current version of the offence is not a complete statement of the actus reus. By reason of the operation of ss 50(2), (3) and (12), the offence still requires proof of two or more unlawful sexual acts. As such, while the primary expression of the actus reus is by reference to a relationship, proof of this relationship ultimately depends upon proof of two or more unlawful sexual acts. In this sense, and like the former version of the offence, and the version of the Queensland offence considered in KBT v The Queen, it is not a course of conduct offence in the true or strict sense.
[77] JJP v The Queen [2021] SASCA 53 at [146] (Doyle JA, Kelly P and Bleby JA agreeing).
Importantly, however, the MUSR offence under s 50 does not require that the jurors be agreed as to the particular unlawful sexual acts that were committed. In respect of the second element of the MUSR offence, the jurors must be agreed as to whether the relationship was corrupted by the commission of at least two unlawful sexual acts, but they need not be agreed as to the particular unlawful sexual acts which were committed. That this is the effect of the express terms of s 50(4)(c) was confirmed in JJP v The Queen:[78]
All of that said, the current version of the offence does overcome the primary difficulty with the former version of the offence, as identified in earlier decisions of this Court and confirmed by the High Court in Chiro v The Queen; that is, the difficulty associated with the requirement of extended unanimity. This is achieved by the express removal in s 50(4)(c) of any requirement that the jury be agreed as to the unlawful sexual acts constituting the unlawful sexual relationship.
[78] JJP v The Queen [2021] SASCA 53 at [147] (Doyle JA, Kelly P and Bleby JA agreeing).
The constitutional validity of s 50(11) of the CLCA
In contending that s 50(11) is constitutionally invalid as infringing the Kable principle, the applicant relies upon two broad submissions. The first is that s 50(11) is invalid for the reasons given in Question of Law Reserved (No 1 of 2018). The second is that s 50(11) is invalid because it purports to withdraw the capacity of the Supreme Court to review sentencing decisions of the District Court for jurisdictional error.
In developing this first submission, the applicant contends that s 50(11) gives rise to a similar difficulty to that which arose under s 9(2) of the Amending Act. On the applicant’s argument, s 50(11) requires that the sentencing judge embark upon a task of determining which sexual acts the offender committed in circumstances where the jury has already undertaken this task. As the sentencing judge will not know what conclusion the jury reached in this regard, and under s 50(11) is not required to ask the jury any question directed to ascertaining this information, “[t]here remains the risk that an individual convicted by a jury will be sentenced in a manner which is not consistent with the jury’s verdict.”
In my view, the applicant’s submission is misconceived. It overlooks a key feature of the MUSR offence under the current version of s 50 of the CLCA, and misunderstands the nature of the inconsistency that was fatal to the validity of s 9(2) of the Amending Act in Question of Law Reserved (No 1 of 2018).
As I have already explained, a key feature of the MUSR offence under the current version of s 50 of the CLCA is that it expressly does away with any requirement that the jurors be agreed as to the particular unlawful sexual acts. The requirement of jury unanimity does not extend beyond agreement that the relationship between the accused and the complainant was corrupted by the commission of at least two unlawful sexual acts. It does not require agreement as to the particular unlawful sexual acts that have been proved.
Understood in this way, the jury verdict does not entail any conclusion as to the particular unlawful sexual acts that were committed by the accused. While individual jurors will have formed conclusions as to which acts were established beyond reasonable doubt, their task does not extend to their being agreed, as the constitutional finder of fact, or as an institution or body, as to which of those acts were committed. No particular finding or conclusion in this respect is inherent in the jury’s verdict.
This position may be contrasted with the verdict of guilty returned against the appellant in Question of Law Reserved (No 1 of 2018). In that case, Mr Hamra had been convicted of the PSE offence. And as that offence required that the jury be agreed as to at least two unlawful sexual acts, some conclusion by the jury as to the particular acts committed was inherent in the jury’s verdict.
An understanding of this aspect of the context in which Question of Law Reserved (No 1 of 2018) was decided is critical to a proper understanding of the reasoning of the Court in that case. The inconsistency that concerned the Court in that case was an inconsistency between the jury’s verdict and the sentencing judge’s findings as to the factual basis for sentence. It was because the jury’s verdict inherently included a finding by the jury (as the constitutional finder of fact, rather than jurors individually) as to the unlawful sexual acts committed that a risk of inconsistency with that verdict arose.
There is no equivalent risk of inconsistency in the present case. While individual jurors will have formed views as to which particular unlawful sexual acts were committed, they were not required to reach any such finding as the constitutional finder of fact. As such, the sentencing judge under s 50(11) was not required to undertake the task already undertaken by the trier of fact, and there is no risk of inconsistency with the jury’s verdict. As Kourakis CJ said in R v M, DV:[79]
[T]he second of the alternative constructions is also consistent with the operation of s 50(11) of the CLCA because a finding of the sentencing judge as to the sexual acts which were committed will not be inconsistent with the jury verdict itself. This is so because the jury will have found no more than the existence of a relationship over a particularised period of time, in the course of which sexual offences of the prescribed kind were committed at least twice, but without finding, as a body, when, where and in what circumstances the offences were committed.
[79] R v M, DV (2019) 133 SASR 470 at [18] (Kourakis CJ, Lovell J agreeing).
Put another way, in the absence of any requirement of unanimity under s 50 of the CLCA as to the particular unlawful sexual acts that resulted in the corruption of the relevant relationship, s 50(11) does not require that the sentencing judge interpret the verdict in a manner that does not accord with the reality of that verdict. Nor does it require that the sentencing judge dispense with the verdict and repeat the exercise undertaken by the jury, let alone require that the sentencing judge impose a fresh interpretation upon the jury’s verdict that might differ from the jury’s conclusions inherent in that verdict.
To the contrary, the task required by the sentencing judge under s 50(11) does not differ from the task ordinarily undertaken by a sentencing judge. The sentencing judge takes the verdict as his or her starting point. While the sentencing judge is left to make additional findings of fact to establish the detailed factual basis for imposing sentence, he or she is required to do so in a manner that is consistent with the jury’s verdict. In this way, the sentencing task contemplated by s 50(11) mirrors the orthodox fact-finding function undertaken by sentencing judges that has a considerable historical pedigree and prevailed before the decision in Chiro v The Queen.[80]
[80] See, for example, Cheung v The Queen (2001) 209 CLR 1 at [14] (Gleeson CJ, Gummow and Hayne JJ); Kingswell v The Queen (1985) 159 CLR 264 at 276 (Gibbs CJ, Wilson and Dawson JJ); Savvas v The Queen (1995) 183 CLR 1 at 8 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); Chiro v The Queen (2017) 260 CLR 425 at [52] (Kiefel CJ, Keane and Nettle JJ), [70] (Bell J), [83]-[92] (Edelman J).
Properly understood, the task required by the sentencing judge under s 50(11) is, for example, analogous to that which occurs following a conviction for the offence of manslaughter where distinct grounds for finding manslaughter (such as provocation, excessive self-defence and unlawful and dangerous act manslaughter) were raised, but no questions were asked of the jury regarding the basis for their verdict. In circumstances where, like under s 50 of the CLCA, the jury need only agree as to the general verdict (as opposed to the basis for that verdict), the sentencing judge must find for himself or herself the facts material to the sentencing. Provided the judge imposes a sentence on the basis of manslaughter (and not murder), no issue arises as to inconsistency with the jury’s verdict.[81]
[81] R v Isaacs (1997) 41 NSWLR 374 at 378-380 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ).
For the reasons set out, the circumstances leading to the invalidity of s 9(2) of the Amending Act in Question of Law Reserved (No 1 of 2018) are distinguishable from those applicable in the present case. The applicant’s submission that s 50(11) impairs the institutional integrity of the sentencing court by analogy with the reasoning in that case must be rejected.
I am fortified in this conclusion by the decision of the Queensland Court of Appeal in R v CAZ.[82] In rejecting a Kable challenge to the validity of the Queensland equivalent of s 50 of the CLCA, Fraser JA (Chesterman and White JJA agreeing) saw no difficulty with the sentencing judge making findings as to the nature and frequency of the sexual acts that had been proved in circumstances where the jury’s verdict was not predicated upon jury unanimity as to the particular acts committed by the offender. As his Honour explained:[83]
In any event, s 229B does not purport to dispense with trial by jury. Indeed, s 229B expressly contemplates trial by jury and requires jury unanimity upon the essential allegation that the defendant maintained a sexual relationship with a child that involved more than one unlawful sexual act. The appellant argued that a direction to the jury (in conformity with s 229B(3)) that all jurors must be satisfied beyond reasonable doubt of one or more unlawful sexual acts, but (in conformity with s 229B(4)(c)) not necessarily of the same acts, is inconsistent with the conventional directions that the prosecution must prove each element of the offence beyond reasonable doubt before it may convict and that the jury’s verdict in respect of each offence must be unanimous. There is no such conflict. The jurors could be unanimously satisfied that the defendant maintained an unlawful sexual relationship with the child involving more than one unlawful sexual act whilst at the same time disagreeing about which two or more of numerous alleged unlawful sexual acts were proved beyond reasonable doubt.
Because jurors might differ about which unlawful sexual acts are proved and which are not, a verdict that the defendant is guilty of an offence against s 229B may leave unresolved some matters that bear significantly upon the defendant’s culpability, such as the frequency and seriousness of the unlawful sexual acts involved in the unlawful sexual relationship. In the result, trial judges may be required to make significant findings of fact in the sentencing process. In this respect s 229B, like some other provisions (such as those which create the offence of trafficking in drugs) reduces the role of the jury in the fact finding process and to that extent erodes the safeguards traditionally associated with trial by jury of more specific offences,[84] but that is not an unconventional feature of trial by jury.[85] These results are necessary corollaries of the qualified dispensation from alleging particulars given by s 229B(4)(a) and are justifiable by the considerations I have already discussed.
In my opinion, s 229B does not work such a serious diminution upon the necessary extent of particularisation of the offence, the usual requirement for jury unanimity (or majority verdicts in certain cases), or other procedures designed to ensure a fair trial, as to justify the conclusion that the trial court no longer exhibits any of the defining characteristics which mark it apart from other decision-making bodies. I would hold that s 229B of the Code is not constitutionally invalid on any of the grounds argued by the appellant.
[82] R v CAZ [2012] 1 Qd R 440.
[83] R v CAZ [2012] 1 Qd R 440 at [53]-[55] (Fraser JA, Chesterman and White JJA agreeing).
[84] See AK v Western Australia (2008) 232 CLR 438 at [90]- [98].
[85] See, for example, Cheung v The Queen (2001) 209 CLR 1 at [6]-[10] (Gleeson CJ, Gummow and Hayne JJ).
As to the second submission advanced by the applicant in support of the invalidity of s 50(11), the applicant contends that s 50(11) purports to exclude the jurisdiction of the Supreme Court to review, and grant relief, in respect of a sentence imposed by the District Court that is infected by error.
In my view, this submission is misconceived and provides no basis for the contended invalidity of s 50(11) of the CLCA. There is no constraint upon the Supreme Court’s ability to review sentencing decisions made pursuant to s 50(11) for error, whether jurisdictional or otherwise. The obligation of a sentencing judge to record the reasons for their decision in the sentencing remarks will facilitate the Supreme Court’s ability to conduct the relevant review on appeal. As the Supreme Court ordinarily would in matters where guilt is determined by a jury and the sentencing judge has made factual findings relevant to sentencing (in accordance with the orthodox approach described above), the Court may, for example, review the sentence for error in the determination of an issue of law or in the making of a finding of fact (including about the commission of a particular unlawful sexual act).
For these reasons, I reject the applicant’s challenge to the validity of s 50(11) of the CLCA. As I have rejected the applicant’s submission that the reasoning in Question of Law Reserved (No 1 of 2018) applies to invalidate the legislative provision impugned in the present case, there is no need for me to address the Attorney-General’s submission in the alternative that that case was wrongly decided.
Ground 2: adequacy of reasons
The applicant contends, and the respondent accepts, that the sentencing judge was required to give reasons for the sentence imposed, and that this extended to reasons for the factual findings made in undertaking the task contemplated by s 50(11) of the CLCA. The obligation to give reasons is inherent in the judicial task, but is expressly reflected in the terms of s 19(1) of the Sentencing Act 2017 (SA). That said, the extent of the reasons required to be given will also reflect the nature and purpose of sentencing remarks, and the nature of the issues that arise in the particular case.
The extent of reasons required to be given in relation to factual findings made in undertaking the task contemplated by s 50(11) of the CLCA, and in particular as to the unlawful sexual acts found by the sentencing judge to have been proved beyond reasonable doubt, will depend upon the evidence and facts of the particular case and the way in which the trial was conducted.
For example, where the complainant gives evidence of only two unlawful sexual acts, the sentencing judge will have no obligation to do anything more than identify those acts (because consistency with the jury’s verdict requires that the sentencing judge sentence on the basis that both acts were proved at trial). By contrast, if there are numerous alleged instances of unlawful sexual acts of varying degrees of seriousness committed in differing circumstances, then the extent of the reasons required to identify the factual basis for sentencing will be more onerous.
Turning to the present case, the applicant accepts that the sentencing judge reviewed the evidence in both trials, but contends that he did not make any specific findings about the factual basis for the sentence, and did not indicate the basis upon which he made a general finding that he believed both complainants beyond reasonable doubt as to all of the allegations.
The sentencing judge’s reasoning and findings for the purposes of s 50(11) have been set out earlier in these reasons. His Honour outlined in very general terms the allegations made by the complainants in each of the matters. His Honour then reasoned that, given the evidence of HS and VS and “how each trial was conducted”, it was his view that “the verdicts of each jury reflected an acceptance by them beyond a reasonable doubt that [the applicant] committed all of the sexual acts alleged against [him]” by HS and VS. His Honour added that he was satisfied beyond a reasonable doubt of the evidence given by HS and VS “in its entirety as it related to [the applicant’s] violent and cruel disposition and of the nature and extent of the acts [he] perpetrated upon each of them”.
In my view, the sentencing judge, through his summary of the effect of the complainants’ evidence, and his acceptance of that evidence in its entirety, adequately identified the factual basis for the sentence he imposed.
As to the applicant’s complaint that the sentencing judge did not articulate his reasons for finding that he believed both complainants beyond reasonable doubt as to all of the allegations, the applicant focused upon the evidence of HS, the complainant in the second trial. He noted that HS alleged during the trial that she had been subject to penile-vaginal intercourse, but accepted in the course of her evidence that she had not mentioned the penile penetration in her first statements. HS had also indicated in her evidence that a man other than the applicant had subsequently taken her virginity, contrary to any suggestion of penile-vaginal intercourse with the applicant. The applicant complains that the sentencing judge made no reference to these aspects of the evidence, or their ramifications for the credibility of the complainant and the factual basis upon which the applicant was sentenced.
In explaining his basis for accepting (as proved beyond a reasonable doubt) the entirety of the complainants’ allegations, the sentencing judge referred to the manner in which each trial was conducted. In the context of the applicant’s submissions in relation to the evidence of the second complainant, HS, this was a reference to the ‘all or nothing’ nature of the case. As the respondent points out, counsel for the applicant at trial, in relying upon the aspects of the evidence mentioned above, contended that they went to “the credibility entirely of the complainant in this matter”; that these, and other, difficulties with her evidence “point to the fact that these events did not occur”. The case was not presented on the basis that HS might have been mistaken or unreliable, or lacking in credit, as to some of her allegations but not all of them.
I accept that it would had been preferable had the sentencing judge elaborated upon his reasons for accepting the entirety of the complainants’ evidence. Bearing in mind the nature of sentencing remarks, and the task under s 50(11), that elaboration need not have been at all lengthy. A few additional sentences along the lines of what I have set out in the previous paragraph would have sufficed. But in the circumstances of the present matter, and for the reasons I have given, it is tolerably clear how and why the sentencing judge came to the conclusion he did. As such, the Judge’s sentencing remarks adequately identified both the factual basis upon which the applicant was sentenced, and his Honour’s reasons for making findings to that effect.
I would reject the applicant’s second ground of appeal.
Ground 3: manifest excess
The applicant contends that the sentence imposed was manifestly excessive, taking into account his “established rehabilitation”, and his old age and poor health. He also contends that there ought to have been a greater degree of concurrency, or allowance for totality, in the sentence imposed.
Relevant considerations
The maximum penalty for each of the two MUSR offences of which the applicant was convicted was life imprisonment.
The circumstances of the two offences committed by the applicant have been detailed earlier in these reasons, and need not be repeated. Each offence involved a sustained course of numerous unlawful sexual acts of a serious nature, occurring over a significant period of time. Each involved offending against a young step-daughter, with one being between the ages of seven and 11, and the other being between the ages of 10 and 12, when the offending occurred. The offending involved gross breaches of the relationship of trust and authority between the applicant and his step-daughters, with the applicant exploiting his advantages of age and life experience to take advantage of the young age and vulnerability of the complainants. The vulnerability of the complainants was no doubt exacerbated by the atmosphere of violence and fear created by the applicant’s behaviour towards his family, and the corresponding power and control that the applicant possessed and abused.
As the sentencing judge correctly acknowledged, each offence called for a sentence reflecting the standard in R v D.[86] I note in this respect the recent application of this standard, with reference to the flexibility inherent in that application, to similar offending in Edmonds (a pseudonym) v The Queen.[87]
[86] R v D (1997) 69 SASR 413.
[87] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [51]-[54] (Livesey P, Doyle and David JJA).
The sentencing judge also acknowledged the devastating and profound impact the applicant’s prolonged sexual abuse had had, and continued to have, upon each of his step-daughters. He said that “[i]n short, their lives were ruined by what you chose to repeatedly do to them when they were young girls to gratify your sexual desires.”
Turning to the applicant’s personal circumstances, the offending occurred in the 1970s when the applicant was in his twenties. By the time he was convicted and sentenced in 2018, he was 68 years of age.
The applicant identifies as an Aboriginal person, having ancestry on his mother’s side. He was the youngest in a family of 10 children. He was raised on a farming property in Victoria and enjoyed a happy childhood. Unfortunately, however, his parents had both passed away by the time he was 18 years of age. After leaving school at the age of 13 years, he went to work to help support his family. He continued working until he retired in his mid-fifties.
As at the date of sentencing, the applicant had been in a relationship for over 25 years with a woman who was by then 71 years of age. She was experiencing signs of cognitive decline, as well as other mental and physical health issues.
The sentencing judge also summarised the difficulties the applicant was experiencing with his own health:
Your health is not the best either. You suffer from a number of mental and physical conditions as detailed in various reports from the Prison Health Service, the psychologist who assessed you and a doctor's report provided by the Mount Gambier Prison where you have been held in custody since the beginning of the year.
You suffer from type 2 diabetes, which has now affected your eyesight; severe arthritis in both knees, for which you are prescribed medication to deal with the pain; hypertension and high cholesterol, for which you are prescribed medication; chronic obstructive pulmonary disease, which affects your breathing and gastro-oesophageal reflux which is treated with medication.
Quite some years ago now you suffered a number of heart attacks in quick succession while you were in hospital. Fortunately, you did not suffer any permanent damage to your health requiring surgery although you now suffer from angina which is being managed with medication. Recently, a skin lesion was removed from your upper arm and contrary to what you may have believed, was not cancerous. The latest report from the Prison Health Service reveals that all of your health and medical needs can be managed within the prison system.
The sentencing judge had regard to a psychological report dated 24 July 2018, which was prepared following the applicant’s conviction of the MUSR offence involving VS, and which described the applicant as suffering from an adjustment disorder characterised by depression and anxiety in response to his legal situation. His Honour also accepted for the purposes of sentencing that the applicant’s memory was in decline, consistent with his advancing years, and that there was a every possibility that he was beginning to experience a decline in his cognitive functioning.
The sentencing judge had regard to the letters written to the Court about the applicant by his partner, step-daughter and step-granddaughter, which he said painted a picture of a very different man to the one he was in his twenties, when he was sexually abusing his step-daughters. His Honour also accepted that because the applicant was being held in custody in Mount Gambier, and his family lived in eastern Victoria and were unable to visit him as regularly as he would like, it would be harder on him to serve out his sentence than it would be for him with regular visits and support from his family.
The sentencing judge took the view that the applicant’s history of unrelated offending was not relevant to the sentence to be imposed, but said that it did support the suggestion that the applicant had been suffering from alcohol-related and other difficulties in his twenties.
In concluding his consideration of the applicant’s personal circumstances, the sentencing judge accepted that, given the applicant’s age, health issues and the absence of any further offending of a similar kind for some 40 years, he “no long pose[d] a risk of offending like that again.” His Honour added that this was consistent with the view expressed by the psychologist, who was of the opinion that while the applicant would satisfy the diagnostic criteria for a paedophilic disorder, that disorder had been largely in remission since he last sexually abused VS.
Despite this view that the applicant no longer posed a risk of similar offending, the sentencing judge considered that a substantial sentence of imprisonment must still be imposed in order to act as a strong deterrent to others from acting as the applicant did towards children in breach of their parental duty of responsibility and trust.
The sentencing judge acknowledged that the sentence he was to impose would likely result in the applicant never seeing his partner again, and that there was a realistic possibility of him passing away in prison. The Judge also said that he had had regard to the slightly more than four months that the applicant was subject to home detention bail before the conditions on his bail were relaxed.
Turning to the sentence to be imposed, his Honour indicated a starting point of 11 years for the offending against HS. However, for the offending against VS he indicated a starting point of 12 years. His Honour explained that the offending against VS was more prolonged than against HS, and that it included more sexual acts. It also occurred after HS had left the home and after the applicant had had time to reflect on the abhorrent nature of his offending against HS; but instead of desisting, the applicant had turned his sexual attentions to VS.
Having identified starting points of 11 years and 12 years imprisonment for the two offences, the sentencing judge considered it appropriate, having regard to the need to ensure a proportionate sentence, to order that the second sentence be served concurrently as to six years, resulting in an overall head sentence of 17 years imprisonment. His Honour explained:
While the two offences are quite separate episodes of child sexual abuse, in time and upon different children, I must, nevertheless, ensure the final sentence arrived at is proportionate to the overall seriousness of your offending when viewed in its entirety and does not result in a crushing sentence. This latter consideration is a difficult one given your age and health concerns.
This principle of achieving a proportionate sentence which is not deemed crushing is known in the common law as the principle of totality. I have been guided by what the Supreme Court has recently stated in R v Smoker (2016) 126 SASR 201 regarding the application of that principle of sentencing and neatly summarised by Lovell J in R v Scott [2017] SASCFC 96.
In applying this principle I consider a final sentence of 17 years imprisonment to be appropriate. To achieve that result I order that six years of the 12 year prison sentence imposed for the offence of maintaining an unlawful sexual relationship with V be served concurrently with the 11 year prison sentence imposed for the offence of maintaining an unlawful sexual relationship with H.
As the applicant was a serious repeated offender, the sentencing judge was required by s 54(1)(b) of the Sentencing Act to fix a non-parole period of not less than four-fifths of the head sentence. His Honour fixed a non-parole period of 13 years, seven months and six days.
Analysis
In considering the applicant’s contention of manifest excess, there is no need to repeat the principles governing this Court’s task. They are well known.[88] 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.
[88] 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 the application of the standard in R v D[89] (given the nature of the applicant’s offending and personal circumstances), and how best to ensure proportionality in the ultimate head sentence given the two counts and the age and ill health of the applicant. Very similar issues arose for consideration in the recent decision of this Court in Edmonds (a pseudonym) v The Queen.[90] These reasons should be read in light of the discussion in that case of the reasons why offending such as the present calls for a strong sentencing response,[91] the flexibility in the application of the standard in R v D,[92] and the mechanisms for ensuring proportionality in a case such as the present.[93]
[89] R v D (1997) 69 SASR 413.
[90] Edmonds (a pseudonym) v The Queen [2022] SASCA 11.
[91] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [52] (Livesey P, Doyle and David JJA).
[92] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [54] (Livesey P, Doyle and David JJA).
[93] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [59]-[71] (Livesey P, Doyle and David JJA).
As described earlier in these reasons, the applicant’s offending was towards the more serious end of the range of offending of this type. While his personal circumstances were relevant, and were appropriately summarised by the sentencing judge, they did not provide any basis for particular leniency in the sentence to be imposed.
In the circumstances, I have little hesitation in accepting that the starting points of 11 years imprisonment and 12 years imprisonment adopted by the sentencing judge were appropriate. Indeed, I do not understand the applicant to have seriously challenged these starting points.
In ensuring that the overall sentence was proportionate, I accept that it was necessary to bear in mind the applicant’s age and ill health, and his Honour’s conclusion that the applicant was no longer at risk of similar offending. However, it is apparent that the sentencing judge took these considerations into account. He did so by ordering that the sentence for the offence against VS be served concurrently as to six years (or 50 per cent of the notional head sentence for that offence), resulting in an overall head sentence of 17 years imprisonment. Bearing in mind both the flexibility to be afforded to sentencing judges in structuring their sentences, and the discussion of the principles of concurrency in the context of MUSR offences in Edmonds (a pseudonym) v The Queen,[94] I consider that this approach was open and appropriate.
[94] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [64]-[69] (Livesey P, Doyle and David JJA).
I would reject the applicant’s contention of manifest excess.
To the extent that the applicant pressed a submission to the effect that the legislative requirement that the sentencing judge impose a non-parole period of not less than four-fifths of the head sentence was somehow relevant to the head sentence to be imposed, this argument must be rejected in light of this Court’s recent rejection of the same argument in Edmonds (a pseudonym) v The Queen.[95]
[95] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [36]-[48] (Livesey P, Doyle and David JJA).
Conclusion
For the reasons set out, I would dismiss the appeal on grounds 1, 2 and 3. In the circumstances I do not consider it necessary to rule on the applicant’s application for an extension of the time within which to seek permission to appeal.
I would dismiss the application for permission to appeal.
DAVID JA: I agree with the reasons of Doyle JA, and the orders he has proposed.
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