J, Ad v The Queen - [2020] SASCFC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
J, AD v THE QUEEN
[2020] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)
3 August 2020
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - DELAY BETWEEN OFFENCE AND SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appeal against sentence.
The appellant was found guilty by a jury of four counts of unlawful sexual intercourse with a person under the age of 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to seven years and six months imprisonment, with a non-parole period of six years.
The amount of time passing between the offending and the passing of sentence (approximately four years and four months) was a relevant factor in sentencing. Subsequent to this offending the appellant committed offences in Western Australia, was convicted, and sentenced to a term of imprisonment of two years and two months. The appellant served 1 year and 11 months of that sentence before being extradited to South Australia. He subsequently spent 5 months and 11 days in custody on remand, before being released on home detention bail where he remained for 11 months and 16 days prior to his relevant conviction for the South Australian offending.
The appellant propounds two grounds of appeal. First, that the sentence was manifestly excessive, particularly with regard to the totality principle in light of the delay in sentence passing. Permission to appeal was previously being granted on this ground by a Judge of this Court. Secondly, he contends that the sentencing judge erred by having regard to offences for which the appellant had not been convicted, or alternatively, by taking into account uncharged conduct as an aggravating feature of each charged offence. The appellant seeks permission to appeal on this ground.
Held, per Stanley J (Kourakis CJ and Peek J agreeing) dismissing the appeal:
1. The Judge did make two factual errors in summarising the circumstances of the offending. However, even if that enlivened this Court’s power to intervene, no different sentence should be imposed.
2. The application of the principle in Mill does not call for this Court’s intervention. The two sentences of imprisonment were punctuated by a lengthy period of home detention. The offending in the two states cannot be construed as a single course of criminal conduct. There was no justification for any element of concurrence, by reason of the Western Australian offending, in imposing sentence for the South Australian offending.
3. The sentence was not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 49(1); Sentencing Act 2017 (SA) s 54(1)(b), referred to.
R v Jongewaard (2009) 266 LSJS 283; Kentwell v The Queen (2014) 252 CLR 601; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; R v De Simoni (1981) 147 CLR 383; Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] NSWLR 517; R v Bui [2018] SASCFC 19; R v Scuteri [2018] SASCFC 103; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Tsonis (2018) 131 SASR 416; R v D (1997) 69 SASR 413; R v Copeland (No. 2) (2010) 108 SASR 398, considered.

J, AD v THE QUEEN
[2020] SASCFC 73
Court of Criminal Appeal: Kourakis CJ, Peek and Stanley JJ

KOURAKIS CJ: I would dismiss the appeal because I would not have imposed any lesser sentence. I agree with the reasons of Stanley J.
I have taken the approach, consistent with my reasons in R v Bui[1] in the passage cited by Stanley J, that totality is a relevant sentencing consideration when imposing a sentence which operates cumulatively on a sentence imposed interstate. However, having regard to the seriousness of the offending, the overall sentence imposed by the Judge was not crushing and sufficiently allowed for the appellant’s rehabilitation on his release.
[1] [2018] SASCFC 19 at [7].
PEEK J: I would dismiss the appeal. I agree with the reasons of Stanley J.
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant was found guilty after a trial by jury of four counts of unlawful sexual intercourse with a person under the age of 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
A Judge of the District Court sentenced him to seven years and six months imprisonment with a non-parole period of six years.
In fixing the head sentence the judge adopted a starting point of eight years. He reduced that by six months for five months and 11 days spent in custody and 11 months and 16 days spent on home detention.
There are two grounds of appeal. The first is that the sentence is manifestly excessive. Permission to appeal on this ground was granted by a Judge of this Court. The second ground is that the sentencing judge erred by having regard to offences for which the appellant had not been convicted, or alternatively, by taking into account uncharged conduct as an aggravating feature of each charged offence. The appellant seeks permission to appeal on this ground.
The appellant was sentenced on the basis he was a serious repeat offender. Section 54(1)(b) of the Sentencing Act 2017 (SA) required the Court to fix a non-parole period of at least four-fifths of the head sentence. No complaint is made on appeal concerning that approach. The complaint is that the head sentence is manifestly excessive.
A relevant factor in sentencing was that sentence was passed about four years and four months after the offending occurred. Subsequent to this offending the appellant committed offences in Western Australia of common assault in circumstances of aggravation, aggravated assault with intent to do grievous bodily harm and criminal damage. The victim of this offending was his former partner. He was sentenced to a term of imprisonment of two years and two months for those offences. After serving one year and 11 months of this sentence he was extradited to South Australia in relation to these offences. Once extradited he spent five months and 11 days in custody on remand before being released on home detention bail where he remained for 11 months and 16 days.
Circumstances of the offending
The four counts of unlawful sexual intercourse were committed against the complainant in May and June of 2014. The complainant was 13 years of age. The appellant was 23 years of age at the time. The appellant is the cousin of the complainant’s mother. The appellant was travelling from Queensland to Western Australia. He stayed with the mother for a period of some weeks. During that time the complainant mostly resided with her aunt but would stay at her mother’s home on weekends and from time to time during the week.
The four charged counts consisted of penile/vaginal intercourse.
The charged acts occurred in the course of sexual conduct as follows:
Count 1
The first act of sexual intercourse took place on 16 May 2014 in the mother’s bedroom, while the mother was out and the complainant’s younger brother was asleep in another room. The appellant had given the complainant beer to drink beforehand. The appellant followed the complainant into her mother’s bedroom, commenced kissing her and laid her down on the bed. He pulled her pyjama shorts aside and performed an act of cunnilingus on her for five to ten minutes. The appellant put on a condom and had vaginal intercourse with the complainant while lying on top of her for around 15 minutes. During intercourse the condom came off. The appellant obtained another condom, positioned the complainant onto her hands and knees and had vaginal intercourse with her for another five to ten minutes. The complainant was crying. She told the appellant that she was emotional because it was the first time she had had sex. The appellant said that he felt like crying too, and that he felt that he had not pleasured her. The appellant placed the complainant’s hand onto his penis for about two minutes.
Count 2
The second act of unlawful sexual intercourse occurred one week later on a mattress on the floor in the lounge room at the mother’s house. The appellant instructed the complainant to remove her shorts and take up a position on her hands and knees, then had penile-vaginal intercourse with her from behind for 15 to 20 minutes while wearing a condom. After the act of intercourse the appellant stated to the complainant that he had an adrenaline rush because he thought her mother would be home at any moment.
Count 3
The next incident involving sexual intercourse occurred one week later, again in the lounge room at the mother’s house, while the mother and brother were sleeping in another room in the house. Sexual touching commenced while the complainant and the appellant were on a couch watching a movie and the appellant placed the complainant’s hand into the waistband of his shorts and onto his penis. The appellant told the complainant to squeeze his penis and she felt him ejaculate onto her hand.
About one-and-a-half hours later, the appellant lay beside the complainant on a mattress on the lounge room floor and told her to remove her shorts and get on top of him. They had sexual intercourse with the complainant in a sitting position on the appellant for less than one minute. The appellant then lay the complainant on her back and had penile/vaginal intercourse with her from a position on top of her for about 15 minutes. The complainant presumed he was wearing a condom.
Count 4
The final act of sexual intercourse occurred about one week later, and a matter of days before the police were alerted to the offending. The sexual activity was preceded by an argument between the appellant and the complainant about their relationship, in which the appellant told her that if she wanted to be with him she “need[ed] to be more dirty and more sexual”. The mother was not home at the time. In response to the argument the complainant took an excess of motion sickness tablets with a can of alcohol and engaged in an act of self-harm by cutting her leg, and told the appellant that she had done so. The appellant asked the complainant for a hug, pushed her against the couch and pulled her pants down. He said, “This will relax you”. She said she did not want to do it. The appellant inserted his fingers into the complainant’s vagina and pulled them in and out a few times. The appellant proceeded to have penile/vaginal intercourse with her from behind her while she was bent over the arm of the couch. The appellant then told the complainant to sit on the couch and keep her mouth open, which she refused to do. The appellant held the complainant’s mouth open and ejaculated into it.
When the mother returned home, the complainant requested permission for a friend, JW, to come over. JW attended at the house that evening. While the mother was out, the appellant suggested to the complainant that he, she and JW should have a “threesome”.
Appellant’s personal circumstances
At the time of sentencing the appellant was 27 years of age. He has a nine year old daughter from a previous relationship. He is currently in a relationship. He has a nine year old stepson from this relationship. Prior to the commission of these offences the appellant had limited antecedents being traffic offences and an act of committing a public nuisance. This offending occurred in Queensland. He also failed to comply with conditions of bail in South Australia in 2018.
There was evidence before the judge that at the time of the offences for which he fell to be sentenced by the District Court the appellant had a recent history of engaging in self-harming. A forensic psychologist, Dr Jack White, considered the appellant’s mental health was severely impaired and that he exhibited symptoms consistent with the possibility of a number of psychological disorders. The sentencing judge rejected Dr White’s opinion that the appellant’s sexual offending reflected his emotional vulnerability and tendency to act on his impulses without regard for the consequences of his actions. The material before the judge indicated that the appellant had not participated in any rehabilitation programs while in custody in Western Australia, although he reported having converted to the Islamic faith.
The judge’s sentencing remarks
In imposing sentence the judge described the circumstances of the offending in the following terms:
Count 1 on the information occurred on 16 May 2014 and consisted of you performing cunnilingus and then penis/vaginal sexual intercourse with her.
Count 2 occurred about a week later, when you digitally penetrated the victim's vagina and then performed penis/vaginal intercourse.
Count 3 occurred at around the same time, when she performed fellatio upon you and you then performed penis/vaginal intercourse.
Count 4 was the final occasion when sexual behaviour occurred between you. You performed digital penetration of her vagina and then penis/vaginal sexual intercourse, after which you ejaculated into her mouth.
The last occasion occurred when you told the victim that you thought you should break up. She became upset, a fight ensued and you then had sexual intercourse with her. You told her that she had to be 'more dirty' with you in order to maintain your attraction. I take it that your disgusting behaviour after the act of sexual intercourse was an example of that. In fact, you were exerting dominance over her by doing that.
The judge referred to the approach to sentencing for offending of this kind as follows:
In a case called R v D, the Supreme Court said in 1997 that sentences for sexual activity with children should be increased. At that stage, the maximum penalty of life imprisonment applied to offences involving children under 12. In the situation where there were multiple offences over a period of time, the court said that the sentence should start at around 12 years. Since then, parliament has changed the law so that life imprisonment now applies to offences involving children under 14. At the time of these changes, parliament also enshrined the comments in that case in the Sentencing Act and the same provision also appears in the new Sentencing Act, which was enacted in 2017.
So, it is obviously the intention of parliament that when sentencing a person for sexual offending against a child under the age of 14 years, where the maximum penalty is life imprisonment, the sentencing process should start at a level of about 12 years. Of course, the Supreme Court emphasised that 12 years is not a fixed starting point. Sentences can vary up or down depending on the individual circumstances of the case.
The judge noted the sentence imposed for the Western Australian offending. He recognised that this offending occurred subsequent to the offending for which the judge was sentencing the appellant.
In the context of considering whether the appellant’s personal circumstances were exceptional for the purpose of determining whether he was to be sentenced as a serious repeat offender, the judge referred to the circumstances of the offending and the appellant’s personal circumstances. He said:
I have quite a deal of difficulty accepting Dr White's view that this was impulsive behaviour. The behaviour occurred over a period of about a month and involved your dominance over a 13-year-old child. It did not involve aggressive or violent behaviour, except possibly the degradation of the victim involved in the fourth count.
Dr White suggested that you are not a typical sex offender who targets his victims. I accept that your sexual behaviour towards this victim occurred in circumstances where you were living in the same house and so your offending was opportunistic rather than targeted. The fact that the offending was opportunistic does not mean, however, that it was impulsive.
Dr White said that your psychological testing demonstrated that your levels of aggression were elevated and that you have a moderate to high risk of violent reoffending, although he somewhat retreated from that statement when giving evidence.
He referred to the positive home detention report before the court which speaks to your increased maturity, your cessation of drug abuse and your good employment record with your most recent employer. As to the risk of sexual reoffending, Dr White said that this depended on your responses to whatever intervention programs could be provided to you.
Taking all those matters into account, I am unable to find that there is anything in your personal circumstances which would accurately be described as exceptional. I certainly do not accept that your behaviour results from vulnerability as a result of any particular psychological condition you may have had in 2014. Your behaviour was a sexual exploitation, plain and simple. Your lack of regard for the consequences was at the victim's expense.
The judge identified the factors relevant to fixing the head sentence as follows:
In the circumstances of this case and having regard to the age of the victim, the relatively short period over which the offending occurred and your age, it is appropriate to start at a sentence which is somewhat less than the 12 years recommended in R v D.
Principles on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out R v Jongewaard[2] where Doyle CJ said:[3]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[citations omitted]
[2] [2009] SASC 346, (2009) 266 LSJS 283.
[3] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view from the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[4] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer[5] by Kourakis CJ,[6] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Court of Criminal Appeal will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Court of Criminal Appeal may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, itself, manifestly unreasonable. On the other hand, the Court of Criminal Appeal may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case it will dismiss the appeal.
[4] [1936] HCA 40, (1936) 55 CLR 499.
[5] [2013] SASCFC 130, (2013) 118 SASR 211.
[6] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.

In Kentwell v The Queen[7] in their joint reasons French CJ, Hayne, Bell and Keane JJ referred to the dichotomy between process (or specific) error and outcome error as discussed by Kourakis CJ in Kreutzer. They said that in the case of a process error, the appellate court’s power to intervene is enlivened and it becomes its duty to resentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent a process error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.[8]
[7] [2014] HCA 37, (2014) 252 CLR 601.
[8] [2014] HCA 37 at [35], (2014) 252 CLR 601 at 615.
The plurality explained the approach to be taken to the disposition of an appeal against sentence founded on process error in the following terms:[9]
When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be “warranted in law”. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not “warranted in law” unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer’s discretion. …
After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. …
[citations omitted]
[9] [2014] HCA 37 at [42]-[43], (2014) 252 CLR 601 at 617-619.
The appellant’s submission
The appellant submits that the sentence is infected both by a process error and an outcome error. The process error is that the judge sentenced the appellant not only for the charged acts of penile/vaginal intercourse but for the uncharged acts to which he referred in his sentencing remarks, namely, in respect of count 1 an act of cunnilingus, in respect of count 2 digital penetration of the complainant’s vagina, in respect of count 3 the penetration of the complainant’s mouth with the appellant’s penis, and in respect of count 4 the digital penetration of the complainant’s vagina and penile penetration of her mouth. In addition, the appellant contends the sentence is manifestly excessive. This was a result of the judge’s errors in failing to consider the principle of totality and the effect of the sentence he was imposing which was cumulative upon the sentence imposed for the Western Australian offending and, either in combination or isolation, the breach of the De Simoni[10] principle in sentencing the appellant for the uncharged acts.
[10] R v De Simoni [1981] HCA 31, (1981) 147 CLR 383.
Totality and delay
In Mill v The Queen[11] the High Court said that the application of the totality principle is complicated where the offender commits a number of offences within a short space of time in more than one state. Upon the offender being apprehended and sentenced to a term of imprisonment in one state, the other state cannot proceed to deal with him in respect of an offence or offences committed in that state until he is released from custody in the first state. That may involve deferring the processes of the criminal law in the second state for a period of years. That is what happened in this case.
[11] [1988] HCA 70, (1988) 166 CLR 59.
The starting point for consideration of this difficulty is the judgment of R v Todd[12] where Street CJ said:[13]
[I]t would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences.... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
[12] [1982] 2 NSWLR 517.
[13] [1982] 2 NSWLR 517 at 519-520.
Todd was cited with approval by the High Court in Mill.[14]In their joint reasons the High Court held that the principle in Todd applies to the fixing of a head sentence when considered in association with the head sentence imposed by the first sentencing court. The Court said that the sentence must be seen to be appropriate in all the circumstances. They said:[15]
In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced ... The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.
[14] [1988] HCA 70, (1988) 166 CLR 59 at 65-66.
[15] [1988] HCA 70, (1988) 166 CLR 59 at 66.
In R v Bui[16] Kourakis CJ explained the principle in Mill as follows:[17]
I take the principle identified in Mill v The Queen to be that when sentences are imposed sequentially by courts in several States, subsequent sentencing courts must apply the principle of totality as if the previous sentence or sentences had been imposed in the same State. Accordingly, the longer period of time between the State and inter-State offending in this case and the offending in Mill affects only that aspect of the totality principle which supports concurrency, partial or total, in the case of offences closely connected temporally or causally. That aspect of the principle, which concerns the stricture that the total sentence should not be crushing and should allow for future rehabilitation, was applicable to the appellant’s sentencing.
[citations omitted]
[16] [2018] SASCFC 19.
[17] [2018] SASCFC 19 at [7].
The law in this area has recently been analysed in R v Scuteri[18] where Peek J, with whom Lovell and Doyle JJ agreed,[19] said:[20]
[18] [2018] SASCFC 103.
[19] Lovell J delivering additional reasons.
[20] [2018] SASCFC 103 at [17]-[20].
On a correct view of the authorities decided since Todd, it is clear that, in the circumstances of the present case, a submission that an unusually high degree of leniency was necessary could only have had any chance of success if the delay was clearly not the fault of the appellant and was either the fault of the prosecuting authorities or was “unexplained”. This proposition is supported by the various New South Wales decisions since Todd, a number of which are collected by the New South Wales Court of Criminal Appeal in the prosecution appeal, R v Borkowski. There, the sentencing Judge had treated delay between offending and sentencing as a mitigating factor in circumstances where (not dissimilar to those in the present case) the delay was largely due to the respondent’s own conduct. The Court of Criminal Appeal found that the Judge had erred and allowed the prosecution appeal. Howie J (with whom McClellan CJ at CL and Simpson J concurred) stated:
The Crown contends that it was an error for the judge to apply the principles arising from R v Todd in the circumstances of this particular case. It is noted that the respondent had sought, and was granted, an order for the attendance of witnesses for cross-examination at the committal proceeding. The respondent was committed to stand trial on 18 June 2008 and the matter was listed for arraignment in the District Court on 31 July and 28 August 2008. On both occasions the matter was adjourned on the application of the respondent.
Todd was a very singular case where the sentencing proceedings for a “stale offence” had been delayed for 5 years while the offender served a period of custody in another state. The judgment of the Court is principally concerned with the issue of totality but so far as the judge in the present case sought to rely upon the judgement of Street CJ, the headnote to the case adequately summarises the sentencing principle derived from that decision as follows:
(2)     Where an interstate sentence has postponed a sentence hearing, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of the earlier sentence, to the fact that he has been left in a state of uncertain suspense as to the subsequent sentence and to the fact that when sentencing for a stale crime a considerable measure of understanding and flexibility is necessary.
Of course the principle in Todd has general application where there has been extensive delay for whatever reason between the date of the commission of the crime and the date upon which sentence is imposed. But the decision does not stand for the proposition that delay will result in leniency being afforded to the offender regardless of the reason for the delay, the extent of the delay, or the impact of the delay upon the offender: R v V. The degree to which leniency will be granted to the offender will depend upon the particular facts of the case. For example, little leniency is granted where the delay is a result of the offender fleeing the jurisdiction: R v Shore and none where the offender has not disclosed other criminality at the time of the imposition of the earlier sentence: Lewins v The Queen. Where the offender is responsible for the delay “it is more difficult for him to call in aid the principle in Todd”: R v Carter.
I do not believe that Todd had any significant operation in the present case. The delay, while not to be encouraged, was not in the order of those cases where the principle has operated. It was largely due to the fact that the respondent wished to dispute a fact relied upon by the prosecution rather than to seek to avoid committal for the offences of manslaughter. There was no evidence of any deleterious impact upon the respondent by reason of the delay. He could have hardly been in any doubt about his fate given the fact that he must have known that he was guilty of a very serious offence, if not manslaughter, and that it was inevitable that a lengthy gaol sentence ultimately would be imposed upon him. The sword of Damocles analogy was misplaced in this case. The judge must have taken into account any rehabilitation achieved by the respondent during the delay when deciding, as a mitigating factor, that he had “substantial prospects of rehabilitation”. The fact that he had been in custody during the period between arrest and sentence was taken into account by backdating the sentence.
The case of Todd has also been considered in a number of South Australian decisions and the position reached is essentially the same as that reached in Borkowski. Such decisions include Kernich v Director of Public Prosecutions (Cth); R v Knight; R v Suckling; The Queen v R, AW; R v Pickard; and, The Queen v H, GJ (No 2).
These decisions all stress the importance of the reason for the delay. Thus in Pickard, Blue J formulated his “general principles” very much by reference to the premise that the delay is shown by the defendant to have been the responsibility of the prosecution authorities. His Honour stated:
The following general principles have been established as to whether or not unnecessary delay in the investigation and prosecution of an offence is a factor to be taken into account in favour of the defendant.
1     Mere unnecessary delay, without being coupled with relevant changes occurring during the delay, is not usually a reason in itself to reduce or suspend a sentence if otherwise indicated (although this will obviously depend on the length of the delay and the particular circumstances).
2     Where, during the period of the unnecessary delay, the defendant has taken major steps in the progress of his or her life resulting in a substantial change in his or her personal circumstances, the combined effect of the unnecessary delay and the changed life circumstances may play a dominant role in the determination of an appropriate sentence.
3     Where, by the time of sentencing, the defendant has undergone rehabilitation, the combined effect of the unnecessary delay and rehabilitation will usually be taken into account in favour of the defendant.
4     The existence of genuine remorse and contrition are taken into account in conjunction with, or as part of, rehabilitation.
The later decision of this Court in The Queen v H, GJ (No 2) also has clear relevance in the present circumstances. The defendant had committed sexual offences against three victims in the 1980s and 1990s but the charges were not laid until 2011. In 2014, after the defendant had made various unsuccessful applications to have the proceedings stayed and evidence excluded, he pleaded guilty to five charges. He was sentenced in the District Court to 11 years and eight months imprisonment with a non-parole period of six and a half years. On appeal, this Court distinguished cases such as Todd, Pickard and R, AW, and stated:
The appellant relies on the decision of the New South Wales Court of Criminal Appeal in R v Todd. In that case a number of offences were committed within a short period of time in two adjoining States; the problem was that each jurisdiction sentenced without reference to the other (thus negating partial concurrency of sentence) and substantial delay was generated by the involvement of two jurisdictions rather than one. The decision establishes a principle that extends beyond that particular factual situation, but at base the Court in Todd was primarily concerned with three things. First, the ability to allow a measure of concurrency, should that be called for by the circumstances under which multiple offences were committed. Second, mitigation by reason of delay that was not the fault of the accused. Third, (and associated with the second), mitigation by reason of an accused having already undergone a degree of rehabilitation during the period of delay preceding his ultimate sentencing.
The appellant also relies on the decision of this Court in R v Pickard, where Gray J and Blue J each considered in detail the development of the law in this area since Todd. Reference to the authorities there discussed suggests that hypothetically the most powerful mitigating combination would be one of substantial delay, due entirely to the fault of governmental agencies, together with major changes in the situation of the accused, together with strong evidence of complete rehabilitation having been achieved. Obviously, the permutations of fact and degree in cases coming before the courts will be highly variable.
In Pickard, the case for mitigation was strong on the basis that:
·       it was remarkable and deplorable that such long delays occurred in the prosecution of the offences between January 2008 and July 2010;
·       no explanation whatsoever was proffered for the delays, which were clearly the fault of the investigating and prosecution authorities”;
·       there were findings of “very substantially changed life circumstances of the defendant occurring during that delay” ─ “she had moved to Perth, taken employment and was pregnant”; and,
·       she “had completely rehabilitated herself from her earlier alcohol and drug abuse. Her earlier dysfunctional existence, the result of a poor family background, had been replaced by a responsible lifestyle of a young married mother”.
[citations omitted]
Manifest excess?
In The Queen v Morse[21] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[22]
[21] (1979) 23 SASR 98.
[22] (1979) 23 SASR 98 at 99.
To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge.[23] In Hili v The Queen[24] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[25]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
[citations omitted]
[23] R v Young [2016] SASCFC 102 at [36], (2016) 126 SASR 41 at 54.
[24] [2010] HCA 45, (2010) 242 CLR 520.
[25] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538-539.
Consideration

It is convenient to commence by noting that the judge made two factual errors in summarising the circumstances of the offending. In his sentencing remarks in respect of count 2, the judge referred to the appellant digitally penetrating the complainant’s vagina, and in respect of count 3 he referred to the complainant performing fellatio upon the appellant.[26] These are not allegations that the complainant made at trial. The Director submits that these factual errors are minor because while erroneous reference was made to uncharged acts alleged to have occurred on the occasion of counts 2 and 3, at trial the prosecution alleged conduct consistent with those uncharged acts had occurred on the occasion of count 4. The Director also submits that this Court can be confident that the judge, in sentencing, did not impermissibly increase the sentence imposed on account of the uncharged acts. He was most unlikely to have overlooked the terms of the information, which only allege four counts of penile/vaginal intercourse, as he heard the evidence and summed up to the jury on the basis of those terms.
[26] AB 129.
I have some difficulty with that submission. It asks the Court to assume that, notwithstanding the express terms of the sentencing remarks that count 1 specifically “consisted of” the appellant performing cunnilingus and then penile/vaginal sexual intercourse, the judge did not sentence the appellant for the uncharged acts. That difficulty is compounded by the judge confusing the occasion on which acts of digital penetration of the complainant’s vagina and the appellant ejaculating into the complainant’s mouth following an act of penile/vaginal intercourse actually occurred. Further, having expressly referred to the uncharged acts, the judge did not subsequently abjure reliance upon them in imposing sentence or otherwise explain how, if at all, he used the uncharged acts in sentencing the appellant. The sentencing remarks are not as clear as they could be.
Nonetheless, I am reluctant to accept that the judge, with his vast experience of sentencing, has made the error attributed to him. In the final analysis it does not matter if I am wrong in this conclusion, as I am satisfied that if this Court’s power to intervene was enlivened by the De Simoni error, I would decide that no different sentence should be imposed.
Further, the application of the principle in Mill does not call for this Court’s intervention. The appellant was extradited to South Australia three months before the end of the Western Australian sentence. That is a period of one year and 11 months. Upon his extradition to South Australia he was in custody for five months and 11 days before spending 11 months and 16 days on home detention. If he is released immediately upon the conclusion of the non-parole period imposed by the judge he will have been in custody or on home detention for a period of nine years, three months and 27 days. If he is not granted parole he will serve a further 18 months in prison. That would be a period in custody or on home detention of 10 years, nine months and 27 days. However, it must be recognised that the 11 months and 16 days spent on home detention is not the same as time served in prison. The courts recognise this fact by the approach taken to giving credit for time spent on home detention bail. While a court can allow credit in sentencing for time spent on home detention, it is not obliged to do so.[27]
[27] R v Tsonis [2018] SASCFC 86 at [86], (2018) 131 SASR 416 at 433.
The two sentences of imprisonment in Western Australia and South Australia are punctuated by a lengthy period on home detention.[28] Accordingly, the impact of the length of imprisonment served and to be served is not as harsh as it would otherwise be had the appellant not spent nearly a year on home detention. In the circumstances the Western Australian and the South Australian sentences cannot be considered cumulative. Accordingly, I would not consider the South Australian sentence to be crushing in the sense discussed in R v Copeland (No. 2).[29]Further, and importantly, the Western Australian and South Australian offences are not of the same nature even if they occurred about seven weeks apart. For reasons I will come to shortly, the South Australian offending is serious. The Western Australian offending also is serious. But the offending in the two states cannot be construed as a single course of criminal conduct. There was no justification for any element of concurrence, by reason of the Western Australian offending, in imposing sentence for the South Australian offending.
[28] Albeit, it is actually the time spent in custody in South Australia which is interrupted by the time spent on home detention bail awaiting the trial of these charges.
[29] [2010] SASCFC 61 at [17], (2010) 108 SASR 398 at 405.
Plainly, the judge did not overlook the Western Australian sentence served by the appellant. He refers to it expressly in his sentencing remarks. The judge weighed the sentence served in Western Australia and the period on home detention in arriving at an appropriate sentence.
In addition, in this case there was little evidence of rehabilitation, and no evidence of contrition or remorse by the appellant.
On any view the sentence was not manifestly excessive. There was no error in the approach the judge took in reliance upon R v D.[30] While the factual circumstances of this case are readily distinguishable from those in R v D, the starting point in R v D was 12 years. The starting point in this case was eight years.
[30] (1997) 69 SASR 413.
The four counts of penile/vaginal intercourse constitute serious offending. That is evident from the maximum penalty for a contravention of s 49(1) of the CLCA which is life imprisonment. The offending was committed without regard to the consequences for the complainant. While it occurred over a period of approximately four weeks, it was not isolated. It was brazen. The appellant had the opportunity to consider and reflect upon his conduct and desist. He did not do so.
There was more than an element of grooming about this offending given the evidence of the interaction between the appellant and the complainant at the wedding reception in Port Augusta in about May of 2014; the sexualised questioning of the complainant by the appellant during the “have you ever?” game which culminated in the appellant suggesting that they could secretly be intimate with one another and his proposal they have sex on the complainant’s 14^th birthday; and the uncharged acts preceding the first act of sexual intercourse where the appellant kissed and touched the complainant, put his hands in her pants and onto her vagina and directed her not to wear underwear at night.
The gravity of the offending is to be assessed having regard to the difference in ages between the appellant and the complainant; the appellant’s knowledge of her age; the particular vulnerability of the complainant as known to the appellant; the nature of the sexual intercourse; and the significant harm caused to the complainant evident from her victim impact statement.
Where the maximum sentence for this offending is life imprisonment, I consider the starting point was well within the applicable range for this offending and this offender. It was not manifestly excessive.
For all these reasons, even if the judge did impermissibly have regard to the uncharged acts in fixing sentence, I would nonetheless conclude that no different sentence should have been imposed.
Conclusion
I would grant permission to appeal on ground 2 but dismiss the appeal.