Lawrence (a pseudonym) v The King

[2024] SASCA 145

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

LAWRENCE (A PSEUDONYM) v THE KING

[2024] SASCA 145

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice David and the Honourable Auxiliary Justice Bond)

19 December 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

The applicant was convicted after pleading guilty to 29 offences involving the sexual abuse of children and the possession and production of child exploitation material.  He was sentenced about a year later to 22 years’ imprisonment with a non-parole period of 17 years seven months and nine days.  At the time of sentencing, he was aged 34.

The applicant seeks permission to appeal against the sentence on two proposed grounds: (1) the sentencing judge erred by imposing a manifestly excessive sentence; and (2) the sentencing judge sentenced on the erroneous basis that the maximum penalty for one of the 29 offences for which the applicant was sentenced was imprisonment for life when in fact the maximum penalty was 10 years’ imprisonment. 

The offending in relation to Ground 2 was offending against the applicant’s ten-year-old niece. The information in respect of which the applicant had been arraigned and in respect of which he had pleaded guilty had identified the relevant offence as unlawful sexual intercourse with a person under the age of 17 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), which at that time carried a maximum penalty of 10 years’ imprisonment. The particulars for this charge stated that the unlawful sexual intercourse was with the applicant’s niece, a person aged 10 years.

In relation to this offence, there was no dispute as to the age of the victim or the conduct involved. At all material times, the parties and the sentencing judge proceeded on an understanding that the relevant offence was an offence of unlawful sexual intercourse with a person under 14 years, contrary to s 49(1) of the CLCA, which carried a maximum penalty of life imprisonment.

The respondent has applied to this Court to amend the information the subject of the plea to correct the irregularity and reflect the appropriate offence provision. The applicant opposed the application but agreed that, if the application to amend succeeded, he would only press the first proposed appeal ground. 

Held, per the Court, refusing permission to appeal:

1.In circumstances where the information contained a defect of substance and it is not arguable that the defendant has been substantially prejudiced by that defect, it is appropriate that the respondent’s application to amend the information be allowed; and

2.In light of the seriousness of the offending and the sentencing judge’s considerable reductions for concurrency, the sentence imposed cannot be said to have been manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) ss 49(1), 49(3), 50(1), 56, 63(1), 63A; Criminal Procedure Act 1921 (SA) ss 22A, 100 128, 181; Sentencing Act 2017 (SA) ss 10, 26(2a), 40(3)(a)(i), 40(3)(a)(ii), 44(2)(b)(i), 44(5), 53, 54(1)(b), referred to.
Burgoyne v The King [2024] SASCA 61; Hackett v The Queen [2021] SASCA 32; Ilich v The Queen [2021] SASCA 45; Robey v Police (SA) [1993] 18 MVR 121; R v Ayles (2007) 97 SASR 78; R v D (1997) 69 SASR 413; R v Lian [2023] SASCA 122; R v McVitie [1960] 2 QB 483; R v MJJ (2013) 117 SASR 81, considered.

LAWRENCE (A PSEUDONYM) v THE KING
[2024] SASCA 145

Court of Appeal – Criminal:    Kourakis CJ, David JA and Bond AJA

THE COURT:

Introduction

1. The applicant was convicted after pleading guilty to 29 offences involving the sexual abuse of children and the possession and production of child exploitation material.  He was sentenced about a year later to 22 years’ imprisonment with a non-parole period of 17 years seven months and nine days.  At the time of sentencing, he was aged 34.

2. He seeks permission to appeal against the sentence.  His proposed first ground of appeal is that the sentencing judge erred by imposing a manifestly excessive sentence.  His proposed second ground of appeal is that the sentencing judge sentenced on the erroneous basis that the maximum penalty for one of the 29 offences for which the applicant was sentenced was imprisonment for life when in fact the maximum penalty was 10 years’ imprisonment. 

3. On the face of it, the sentencing judge had erred in the manner suggested by the second ground.  The error could not be said to be immaterial to the ultimate single sentence imposed.  Ordinarily the result of such a process error would be that the sentence would be set aside and the applicant re-sentenced.[1] 

   [1]     Cf Burgoyne v The King [2024] SASCA 61, [19]-[20] (Livesey P, Bleby and David JJA).

4. However, the facts of this case were unusual.  The relevant charge particularised that the applicant had had unlawful sexual intercourse with his 10-year-old niece, TF.  No doubt because of the particular way in which the offending became known[2], there had never been any dispute as to the facts of the offending in relation to that charge (or indeed any of the charges), either as to the conduct involved or the age of the victim. Sexual intercourse with a person under the age of 14 years amounts to conduct contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), which provides for a maximum penalty of life imprisonment.  Accordingly, both the parties and the sentencing judge had proceeded at all material times on the basis that the applicant had pleaded guilty to a charge for which the relevant maximum penalty for the charge was in fact life imprisonment. 

   [2]     See the description at [8] to [10] below.

5. What everyone had overlooked was that the information in respect of which the applicant had been arraigned and in respect of which he had pleaded guilty had, despite the particularized conduct, identified the offence as sexual intercourse with a person under the age of 17 years. That appeared to be a reference to offending which is contrary to s 49(3) of the CLCA, not s 49(1). At the time of the offending, the maximum penalty for offending contrary to s 49(3) was 10 years’ imprisonment.

6. The respondent applied to this Court to amend the information the subject of the plea “to correct the irregularity and reflect the appropriate offence provision.”  The applicant opposed the application but agreed that, if the application to amend succeeded, he would only press the first proposed appeal ground. 

7. For reasons which follow, the respondent’s application to amend must be allowed and the applicant’s argument in support of the first proposed appeal ground must be rejected.  Accordingly, the applicant must be refused permission to appeal against sentence.

   The respondent’s application for amendment of the information

8. The circumstances of the applicant’s offending will be addressed in further detail in relation to whether the single sentence for the entirety of the offending was manifestly excessive.  For present purposes it suffices to note that the applicant’s offending became known on 29 July 2022 when his then domestic partner reported to police that she had found videos and photos depicting his sexual abuse of her daughter, LT. 

9. The applicant was arrested on 29 July 2022 and remained in custody thereafter.

10. Subsequent police examination of the applicant’s various electronic devices revealed videos depicting the applicant’s extensive sexual offending against LT and also his less extensive but still significant offending against her twin brother ST.  It also revealed videos depicting the sexual offending by the applicant against his niece TF on 19 and 20 April 2017.  Amongst the sexual offending so revealed was that the applicant had had sexual intercourse with TF on 20 April 2017, at which time she was aged 10.

11. For present purposes it is necessary to focus only on the procedural history concerning the last-mentioned offending.

12. At the time of the applicant’s offending against TF, ss 49(1) and 49(3) of the CLCA were in these terms:

    49—Unlawful sexual intercourse

    (1) A person who has sexual intercourse with any person under the age of 14 years shall be guilty of an offence and liable to be imprisoned for life.

    (3) A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.

    Maximum penalty: Imprisonment for 10 years.

13. Accordingly, and as already mentioned, the applicant’s offending against TF on 20 April 2017 engaged s 49(1) and not s 49(3). Magistrates Court Information MCCRM-22-017248 (the Information) was filed on 20 December 2022 and relevantly recorded:

    Count 3

    Offence Details:

    Unlawful Sexual Intercourse With Person Under 17 years

    Particulars:

    On the 20th day of April 2017 at … in the said State, had sexual intercourse with [TF] a person of the age of 10 years

    Section 49(3) of the Criminal Law Consolidation Act, 1935

    This is a Major Indictable Offence.

14. The applicant’s first appearance in relation to the Information was in the Adelaide Magistrates Court on 20 December 2022. The matter was remanded for Preliminary Brief and/or Charge Determination on 26 April 2023.

15. On 12 January 2023, the applicant filed an application in the Magistrates Court to call the matter on for the entry of early guilty pleas and requested the matter be listed before 17 January 2023 for the entry of such pleas.

16. On 2 March 2023, the applicant pleaded guilty in the Magistrates Court to all charges on the Information, including Count 3. He appeared via audio visual link from custody.  The matter was adjourned for guilty plea arraignment in the District Court.

17. On 27 April 2023, the applicant was arraigned in the District Court and pleaded guilty to the same charges.  The matter was given District Court case number DCCRM-23-008346. 

18. The prosecution’s factual summary was filed on 3 November 2023 and, relevantly, recorded:

    (a)On 2 March 2023, the applicant had pleaded guilty to, amongst other charges, “Unlawful Sexual Intercourse (Under 17 years) (against [TF]) – 20.4.17 (Count 3)”.

    (b)The details of the applicant’s offending against TF had been identified on video files which the police had located on the applicant’s electronic devices and which had been recorded on 19 and 20 April 2017, when TF was 10 years and 8 months old. 

    (c) One of the videos recorded on 20 April 2017 showed the applicant offending against TF in a manner which constituted unlawful sexual intercourse.

    (d)The relevant maximum penalty as “Unlawful Sexual Intercourse, s49(1) Criminal Law Consolidation Act 1935 - imprisonment for life”.

19. On 9 February 2024, the sentencing judge heard submissions on sentence.  The applicant was represented by counsel.  Save for some presently irrelevant corrections made by counsel, the facts recorded in the prosecution’s factual summary filed on 3 November 2023 were accepted as correct and the applicant’s counsel did not make any submissions as to the penalty applicable to Count 3. Nor did he contest the identification of the applicable maximum penalty.  The only reference to Count 3 was that it was “isolated offending”.  The prosecutor referred to the prosecution’s factual summary in these terms:

    … the prosecution have provided the court with a comprehensive factual summary, the maximum penalties that apply … I don’t propose to re-address your Honour in relation to the maximum penalties….

20. Before this Court, counsel for the applicant frankly conceded that everyone at the sentencing hearing had proceeded on the basis that the maximum penalty for Count 3 was life imprisonment and no one had noticed that the wrong section had been referenced in the Information. 

21. In her Honour’s sentencing remarks, the sentencing judge recorded that the offences for which the applicant was to be sentenced included (referring to Count 3 against TF):

    One count of Unlawful Sexual Intercourse with a Person Under 17 years, contrary to s.49(1) of the Criminal Law Consolidation Act, for which the maximum penalty is … imprisonment for life.

22. The problem created by the wording of the Information in relation to Count 3 and the difference between the maximum penalties specified for s 49(1) and for s 49(3) was first identified by the respondent after the applicant had lodged his application for permission to appeal against sentence. That identification led to the applicant formulating the proposed second appeal ground. As mentioned, the respondent seeks to cure the problem by applying to this Court to amend the Information the subject of the applicant’s guilty plea “to correct the irregularity and reflect the appropriate offence provision”.

23. The respondent submitted that s 128 of the Criminal Procedure Act 1921 (SA) empowered this Court to make such an amendment. That submission must be rejected because s 128 only empowers a court to amend an Information “before trial, or at any stage of a trial”. However, in Ilich v The Queen,[3] this Court recognised that s 181 of that Act could be employed to permit an amendment during the course of an appeal in circumstances where there was no prejudice to the appellant.  In R v Ayles,[4] Doyle CJ expressed the view that it was not an absolute constraint on the exercise of the amendment power that the amendment substituted a new charge for an existing charge, so long as the new and substituted charge did not involve the determination of any new issue and the substance of the case did not alter. Although his Honour was considering the power to amend before trial or at any stage of the trial previously expressed in s 281 of the CLCA, there is no reason not to apply his Honour’s observations to s 181.

    [3]     Ilich v The Queen [2021] SASCA 45 at [71] (Kelly P, Lovell and Livesey JJA).

    [4]     R v Ayles (2007) 97 SASR 78 at [63] (per Doyle CJ, Gray and David JJ agreeing).

24. Section 181 provides:

    181—Charges

    (1)     An information is not invalid because of a defect of substance or of form.

    (2)     A court may—

    (a)     amend an information to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or

    (b)     dismiss an information if the defect cannot appropriately be cured by amendment.

25. The question arises whether the respondent’s application can be characterised as an application to “amend an information to cure a defect of substance or form”, which, in turn, raises the question whether the Information can be regarded as containing a defect of substance or form. 

26. The requisite legislative prescription for the contents of the Information in this case was that contained in ss 22A and 100 of the Criminal Procedure Act, which are in the following terms:

    22A—Description of offence

    (1) Every information, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.

    (2) The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.

    (3) After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.

    100—Informations charging indictable offences

    (1)     An information charging an indictable offence must contain—

    (a)     a statement of the specific offence or offences that the accused person is charged with; and

    (b)     such particulars as are necessary for giving reasonable information as to the nature of the charge.

    (2) Despite any rule of law or practice (but subject to the provisions of this Act), an information charging an indictable offence and laid in a court will not be open to objection in respect of its form or contents if it is framed in accordance with any requirements prescribed by the rules of that court.

27. In the present case, the wording of the Information is set out at [13] above, as to which the following observations may be made:

    (a)Consistent with ss 22A and 100 the Information contained two sections: a statement of the offence and particulars.

    (b)However contrary to s 22A(2) the statement of the offence did not contain a reference to the section of the statute creating the offence. Rather that statement was set out in the particulars. That defect would be regarded as a defect of form.

    (c)Both ss 22A and 100 require that an information must set out “such particulars as are necessary for giving reasonable information as to the nature of the charge”. The words “necessary for giving reasonable information” must be taken to import an objective test.[5]

    (d) Any objective assessment of the adequacy of the particulars must take place against the background of the terms of ss 49(1) and 49(3) of the CLCA. In this case the particulars specified that the person with whom the applicant had sexual intercourse was aged 10, which, when one appreciates the terms of ss 49(1) and 49(3), described offending against s 49(1) not s 49(3). Yet by using the words “person under 17 years”, the statement of the offence used language referable to s 49(3) not s 49(1) and the particulars referred to s 49(3) not s 49(1).

    (e)The appellant submitted that there was no defect because the complainant aged 10 was just as much a person under 17 years as she was a person under 14 years. Whilst literally that is true, in the present context that submission is mere sophistry. On an objective assessment and against the background of knowledge of ss 49(1) and 49(3) and the fact that the legislature’s evident intention was that there should be a much greater maximum punishment for sexual intercourse with the younger category of complainant, the discrepancy between the wording of the statement of the offence and the description of the actual offending conduct set out in the particulars created at the least a serious and patent ambiguity. That must be regarded as a defect of substance.

    [5]     R v McVitie [1960] 2 QB 483 at 494-495, cited with approval in Robey v Police (SA) [1993] 18 MVR 121 at 123

28. It follows that the Court has jurisdiction to amend the Information to cure the defect unless the defendant has been substantially prejudiced by the defect. 

29. In the present case it is not arguable that the defendant has been substantially prejudiced by the defect.  As mentioned, there was never any dispute as to the facts of the offending, or the age of TF. Despite the defect in the wording of the Information, the applicant did not proceed on the assumption that he was only liable to a maximum penalty of 10 years for Count 3.  To the contrary, his counsel proceeded on the assumption that the applicant’s having had unlawful sexual intercourse with the 10-year-old TF on 20 April 2017 was offending to which the applicable maximum penalty was life imprisonment and his submissions had proceeded accordingly. 

30. Section 128 of the Criminal Procedure Act permits amendment before trial or at any stage of a trial only if the amendment can be made “without causing injustice”. Those words are not replicated in s 181 of that Act. The omission does not matter. Section 181 confers a discretion on the Court and that discretion must be exercised judicially. The Court would not amend an information to cure a defect of substance or form if that caused injustice. An amendment which increased the maximum penalty to which an offender had already pleaded guilty might in other circumstances be regarded as causing injustice to the offender. However, in the particular and unusual circumstances of this case, the amendment does not cause injustice. If the defect had been discovered before sentence, an application could have been made pursuant to s 128 and it could hardly have been resisted. It was not suggested to this Court that there was any reason to think that the applicant would have sought to change his plea. Given the nature and strength of the prosecution case, that is hardly surprising. In such circumstances, the theoretical possibility that by allowing the amendment at this stage the Court would be denying the applicant the opportunity to set aside his guilty plea in relation to the offending against TF; then to be re-arraigned, and then to plead not guilty is not a sufficient basis to conclude that the amendment in this case would be productive of injustice.

1. The result is that the respondent’s application to amend must be allowed.  Count 3 on the Information should be amended as follows –

   (a)In the “Offence Details”: by deleting the words “Under 17 years” and replacing them with the words “under 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act, 1935”; and

   (b)In the “Particulars”: by deleting the words “Section 49(3) of the Criminal Law Consolidation Act, 1935”.

2. The applicant having intimated that if the amendment was made, only the first appeal ground would be pressed, it is appropriate now to consider whether the applicant can demonstrate that the sentence was manifestly excessive.  To that end it is necessary to record the nature of the applicant’s offending in a little more detail.

   The sentencing remarks

3. The sentencing judge explained that the offences for which the applicant fell to be sentenced could be grouped in different ways.

4. Grouped by the nature of the offences, the offending involved:

   (a)One count of sexual abuse of a child, contrary to s 50(1) of the CLCA, for which the maximum penalty was imprisonment for life.

   (b)One count of unlawful sexual intercourse with a person under 14 years, contrary to s 49(1) of the CLCA, for which the maximum penalty was imprisonment for life.

   (c)One count of aggravated indecent assault of a person under 17 years, contrary to s 56 of the CLCA, for which the maximum penalty was imprisonment for 10 years.

   (d)Twenty-four counts of aggravated producing child exploitation material, contrary to s 63(1) of the CLCA, for which the maximum penalty was imprisonment for 12 years for each count.

   (e)One count of aggravated possessing child exploitation material, contrary to s 63A of the CLCA, for which the maximum penalty was imprisonment for 10 years, as this is a subsequent offence.

   (f)One count of possessing child exploitation material, contrary to s 63A of the CLCA, for which the maximum penalty was imprisonment for 7 years.

5. On the other hand, having regard to the nature of the underlying offending, the sentencing judge identified five separate groups of offending.  It is convenient to list the groups in the same order in which the sentencing judge eventually tabulated the notional sentences which she was required to provide in respect of the applicant’s offending and then to explain the way in which the sentencing judge considered the issues of concurrency and totality to reach a single head sentence and non-parole period.

6. First, the offending against LT, which occurred between 27 July 2020 and 14 June 2022, when LT was aged between seven years and 10 months and nine years and nine months.  During that period of one year and 11 months, the applicant regularly and consistently sexually abused LT. As to that offending, it suffices to observe:

   (a)The applicant’s abuse of LT began within weeks of his commencing a relationship with her mother.  He abused LT at the family home and filmed the abuse.  There were 123 separate days on which the applicant recorded his sexual offending against LT.

   (b)The prosecution’s factual summary of the abuse of LT depicted on the videos and images produced by the applicant was reproduced in a 15-page annexure to the sentencing judge’s sentencing remarks.  In the body of her sentencing remarks, the sentencing judge expressed a more abbreviated summary of the awful detail there expressed in the following way:

   (i)The applicant inserted his fingers between LT's labia majora, including rubbing her clitoris, on 41 occasions;

   (ii)The applicant rubbed his penis between her labia majora on 7 occasions;

   (iii)The applicant touched LT's genital area with his fingers on 31 occasions;

   (iv)The applicant spread apart LT's labia majora with his fingers on 32 occasions;

   (v)The applicant inserted his fingers into LT’s vagina on 12 occasions;

   (vi)The applicant inserted various objects (including a dummy, razor, cotton bud and track pant cord) into LT's vagina on 6 occasions.

   (vii)The applicant performed an act of cunnilingus upon LT on 16 occasions;

   (viii)The applicant caused LT to insert her fingers between her labia majora on 4 occasions, and to touch her genital area on 11 occasions;

   (ix)The applicant inserted his penis between LT's labia majora on 12 occasions, and attempted to insert his penis into her vagina on 15 occasions;

   (x)The applicant caused LT to touch his penis on 18 occasions;

   (xi)The applicant touched LT's breasts on 3 occasions and her buttocks on 21 occasions;

   (xii)The applicant kissed LT on the mouth on 11 occasions;

   (xiii)The applicant touched LT's body and genital area with his penis on 21 occasions;

   (xiv)The applicant masturbated in LT's presence on 3 occasions and ejaculated on her body on 5 occasions;

   (xv)The applicant caused LT to fellate him on 6 occasions and to touch his scrotum on 2 occasions.

   (c)The analysis of the applicant’s electronic devices led to the count of sexual abuse of a child and, representative of the occasions that the applicant recorded unlawful sexual acts upon LT, 11 counts of aggravated producing child exploitation material.

   (d)The sentencing judge correctly found that the offending against LT was the most serious and depraved offending and described the applicant’s sexual abuse of LT as appalling.

7. Second, the offending against LT’s twin brother, ST, which occurred between February 2020 and April 2022, when he was aged between seven years and five months and nine years and seven months.  Seven video files revealed seven of the counts of aggravated producing child exploitation material.  The applicant filmed ST naked, including several times when he was heard on video encouraging ST to play with his penis as the applicant filmed it. In all video files he focussed on ST's penis.  One of the counts involved 4 different video files depicting ST and LT naked in the bath, with the focus of the camera on their genitals, but also capturing their faces and, on one occasion, the applicant rubbing his hand on and then cupping LT’s buttock.

8. Third, the offending against TF, which occurred on 19 and 20 April 2017, when she was aged 10 years and 8 months:

   (a)The applicant filmed her vaginal area, then put his hand down the waistband of her shorts and underwear to expose the top of her pubic bone. He then stroked the pubic bone with his finger. This offending constituted the count of aggravated indecent assault and, because the applicant filmed what he was doing, also one of the counts of aggravated producing child exploitation material.

   (b)Three further videos revealed that the applicant pulled down TF’s shorts and underwear and proceeded each time to rub her clitoris with his finger in an act of digital penetration. This offending constituted the count of unlawful sexual intercourse and, because the applicant filmed what he was doing, also one of the counts of aggravated producing child exploitation material.

9. Fourth, aggravated production of child exploitation material involving unidentified children.  This offending occurred between 19 March 2021 and 10 April 2022. Police located over 100 videos and images on the applicant’s electronic devices.  The material had been captured with a mobile phone and involved the secret filming of unidentified female children between three and 10 years of age throughout various locations in Adelaide. The applicant had followed young girls around supermarkets, on playground equipment, at the beach, and even at LT and ST's swimming carnival. In these videos he filmed the children without their parents’ knowledge and zoomed in on the children's buttocks or crotch area as they played or sat with their knees to their chest.  This offending gave rise to four counts of aggravated producing child exploitation material. 

10. Fifth, possession of child exploitation material.  2201 images and 320 videos were found on the applicant’s electronic devices which were classified as aggravated child exploitation material.  That offending gave rise to the single count of aggravated possessing child exploitation material.  26 files were classified as basic material and gave rise to the single count of possessing child exploitation material.  The sentencing judge found that much of the child exploitation material depicted abuse of young girls similar to the abuse which he carried out on LT. The applicant had also filmed himself watching this child exploitation material, making disgusting comments about the footage he was watching and what he would like to do to the children.

11. The sentencing judge recorded that the review of the video files involving LT revealed a change in LT’s demeanour as the sexual abuse continued and escalated over time.  She began to speak in a baby voice and to make silly voices. She eventually stopped talking completely. By the last weeks of the abuse, she hung her head and was motionless, staying in positions that the applicant put her in as he abused her. As the applicant’s abuse of LT continued, she also lost a considerable amount of weight.

12. The sentencing judge had regard to the long-term adverse consequences of the offending for the applicant’s child victims.  She also had regard to what she described as the powerful and moving victim impact statements received from –

    (a)the mother of LT and ST;

    (b)from the father of LT and ST and, separately, from the father’s domestic partner; and

    (c)from TF’s mother, the applicant’s older sister,

    which described the profound harm the applicant caused to his child victims but also to their parents.

13. The sentencing judge had regard to the applicant’s personal circumstances, recording first the significant aggravating feature that he had a 2009 conviction for possessing child pornography. Police had found 2,200 relevant images on his computer, approximately 800 of which constituted child pornography, including images showing children exposing their breasts and genitalia and one image depicting a child engaging in sexual activity with an adult.  He had been sentenced to one year and three months in prison, suspended for 3 years upon his entering into a bond, with the bond conditioned upon his being supervised by the Department for Correctional Services for one year and six months.  That sentence was completed without incident.  The applicant also completed the six-month sex offender rehabilitation program at Owenia House.

14. The sentencing judge noted that the previous sentencing judge had taken into account a significant tragedy which had occurred in the applicant’s life, namely that the applicant had suffered a brain injury when he was 13, consequent upon a collision between a bus and the Ghan train. At the time of sentencing in 2009 a psychologist, Mr Balfour, opined that, due to the brain injury, the applicant suffered from an organic personality syndrome of mild severity, which had resulted in a degree of cognitive impairment, poor impulse control and impaired social judgment. However, Mr Balfour opined his syndrome would not have impaired the applicant’s ability to appreciate the wrongfulness of his behaviour in accessing child pornography.

15. The sentencing judge reviewed and commented upon the reports of Mr Balfour from the time of that sentencing and since.  Amongst the matters identified in those reports, the sentencing judge identified and took into account the following:

    (a)The applicant had a good relationship with his mother and an improved relationship with his father, and had, after completing his previous sentence, been in near continuous employment.

    (b)At the time of his arrest the applicant had been in a de facto relationship with the mother of LT and ST.  She has since given birth to his child, but an order prevents him having contact with her.

    (c)The applicant now accepts he is a paedophile; is sexually attracted to children; acknowledged that his victims trusted him, and that had abused their trust by his offending.

    (d)Mr Balfour noted that the applicant’s brain injury may have led the applicant to experience impulsivity, reduced impulse control, mood swings, diminished empathy, impaired decision-making ability and altered social conduct, stemming from structured abnormalities in the brain, disrupting neural pathways that regulate personality. This may have had some, but limited, impact on the applicant’s decision to offend as he did.

    (e)Mr Balfour was of the view that the applicant clearly satisfied the DSM-V diagnostic criteria for a paedophilic disorder given his progression to committing contact offending with vulnerable children who were in his care. Mr Balfour though the applicant appeared to understand how wrong his offending was and the impact it would have on the children involved. The applicant told Mr Balfour that he took full responsibility for his offending, admitting that he obviously had some sort of sexual tendency towards children.

    (f)Mr Balfour was of the opinion that the applicant’s prognosis to stop offending was poor, given that had have already undergone a sexual offender rehabilitation program after the 2009 offending, and given that he now accepted having a paedophilic disorder of the non-exclusive type.

16. Based on her review of Mr Balfour’s reports, the sentencing judge found that the applicant had a deep interest in sexual acts with children, particularly pre-pubescent girls. She was satisfied beyond reasonable doubt that he had an interest in sexual images and videos of young children. Her Honour sentenced him on the basis that there were reasons to be cautious about his insight into his offending and as to his sexual interest in children being behind him.

17. The sentencing judge had regard to and considered the remarks of Doyle CJ in R v D (1997) 69 SASR 413 at 423, the remarks of Kourakis CJ in R v MJJ (2013) 117 SASR 81 at [84] and the recent case of R v Lian [2023] SASCA 122 noting in that respect:

    More recently in the case of R v Lian, the Court of Appeal, including the Chief Justice again considered in detail the impact of offending such as yours, annexing to that judgment an extract from the Canadian Supreme court case of R v Friesen. That extract sets out the court's remarks on the harm sexual abuse brings upon children, their families, their community and society generally. Chief Justice Kourakis encouraged all sentencing judges to familiarise themselves with the contents of those materials. Much of the material confirms what was said by Doyle CJ in R v D. In particular that the protection of children is one of the most fundamental values of our society.

    The judge in Friesen said further:

    Sexual violence against children is especially wrongful… In reforming the legislative scheme governing sexual offences against children, parliament recognised that children, like adults, deserve to be treated with equal respect and dignity. … Yet instead of relating to children as equal persons whose rights and interests must be respected, offenders treat children as sexual objects whose vulnerability can be exploited by more powerful adults. There is an innate power imbalance between children and adults that enables adults to violently victimise them. … Because children are a vulnerable population, they are disproportionately the victims of sexual crimes. … Children are most vulnerable and at risk at home and amongst those they trust. More than 74% of police-reported sexual offences against children and youth took place in a private home in 2012 and 88% of such offences were committed by an individual known to the child.

18. The sentencing judge had proper regard to and complied with the following technically required aspects of the sentencing task:

    (a)The applicant was entitled to a discount on the sentences as a result of the early timing of his pleas of guilty, which saved his child victims exposure to the trauma of involvement in a trial.  In relation to the two offences of possessing child exploitation material, the applicable discount was up to 35%.[6]  In relation to all other offending the applicable discount was up to 25%.[7]  There being no submission that the full discounts should not be applied, the sentencing judge determined to apply the full discounts. 

    (b)By virtue of the seriousness and number of offences the applicant had committed, the applicant was to be sentenced as a serious repeat offender.[8]  That meant, amongst other things, that any non-parole period must be at least four-fifths of the sentence imposed.[9]  Although the serious repeat offender provisions permitted the imposition of a disproportionate sentence for the protection of the community, no application for such a sentence was made and the sentencing judge determined not to apply what might be described as a disproportionate sentence.

    (c)As the applicant had been in custody since his arrest on 29 July 2022, his sentence and non-parole period were both to be backdated to that date.[10]

    (d)Having done so, her Honour then considered the issue of concurrency and totality to reach a single head sentence and non-parole period which she regarded to be proportionate to the applicant’s overall criminality.[11]

    [6]     Sentencing Act 2017 (SA) s 40(3)(a)(ii) (‘Sentencing Act’).

    [7]     Sentencing Act s 40(3)(a)(i).

    [8]     Sentencing Act s 53.

    [9]     Sentencing Act s 54(1)(b).

    [10]   Sentencing Act ss 44(2)(b)(i), 44(5).

    [11]   Sentencing Act s 10.

19. The sentencing judge was required to provide notional sentences for all of the applicant’s offending.[12]  Her Honour did so in annexure C to her sentencing remarks and narrated in the body of her sentencing remarks an explanation how she adjusted her sentences for concurrency and totality.  The table below explains her Honour’s process, identifies the relevant notional sentences, and identifies the various and very significant deductions for concurrency and totality. 

    [12]   Sentencing Act s 26(2a).

1. Offending against LT
Offence	Maximum sentence	Notional sentence
Sexual abuse of a child	Life	14 years discounted by 25% to 10 years 6 months
11 counts of aggravated producing child exploitation material	12 years for each count	3 years for each count discounted by 25% to 2 years 3 months for each count
Pursuant to s 26 cumulative notional sentence for the 11 counts of aggravated producing child exploitation material of 24 years 9 months reduced for concurrency to 5 years for the 11 counts
Pursuant to s 26 cumulative notional sentence for total offending against LT of 15 years 6 months further reduced for concurrency between the sexual abuse count and the aggravated producing child exploitation material counts to 13 years 6 months
2. Offending against ST
Offence	Maximum sentence	Notional sentence
7 counts of aggravated producing child exploitation material	12 years for each count	2 years and 6 months for each count discounted by 25% to 1 year 10 months 2 weeks and 2 days for each count
Pursuant to s 26 cumulative notional sentence for the offending against ST of 13 years 1 month and 22 days reduced for concurrency between all 7 counts to 4 years
3. Offending against TF
Offence	Maximum sentence	Notional sentence
Unlawful sexual intercourse with a child under 14 years[13]	Life	6 years discounted by 25% to 4 years 6 months
Aggravated indecent assault	10 years	4 years discounted by 25% to 3 years
2 counts of aggravated producing child exploitation material	12 years for each count	2 years and 6 months for each count discounted by 25% to 1 year 10 months 2 weeks and 2 days for each count
Pursuant to s 26 cumulative notional sentence for the offending against TF of 11 years 3 months and 4 days reduced for concurrency between all 4 counts to 6 years
4. Offending against unidentified children
Offence	Maximum sentence	Notional sentence
4 counts of aggravated producing child exploitation material	12 years for each count	2 years 6 months for each count discounted by 25% to 1 year 10 months and 2 days for each count
Pursuant to s 26 cumulative notional sentence for the offending of 7 years 8 months and 28 days[14] for the offending against unidentified children reduced for concurrency between all 4 counts to 3 years
5. Possession of child exploitation material offending
Offence	Maximum sentence	Notional sentence
Aggravated possessing child exploitation material	10 years	3 years and 3 months discounted by 35% to 2 years 3 months 1 week and 3 days
Possessing child exploitation material (basic)	7 years	2 years discounted by 35% to 1 year 6 months
Pursuant to s 26 cumulative notional sentence for the offending of 3 years 9 months and 1 week and 3 days for the possession of child exploitation material reduced for concurrency to 1 year 6 months
Single sentence for all of the offending and non-parole period
Pursuant to s 26 cumulative notional sentence for the five groups of offending of 28 years further reduced for concurrency, totality and to avoid a crushing sentence to 22 years
Pursuant to s 54(1)(b) as a serious repeat offender final non-parole period calculated as four-fifths of the length of the sentence to 17 years 7 months 9 days

[13]   This offence was the Count 3 which was the subject of the amendment dealt with in the earlier part of these reasons.  The sentence judge mentioned 17 years not 14 years, but the language in this table reflects the amendment.

[14]   The total is that expressed by the sentencing judge.  It appears to be mathematically incorrect and should be 7 years 4 months and 8 days.  No point was taken as to this error on appeal.  No doubt that was so because, having regard to the extent of reductions for concurrency throughout the sentence, the error was immaterial to the ultimate total sentence.

1. In explaining the reduction last mentioned, the sentencing judge remarked:

   I must now consider what is an appropriate single sentence for your offending. There is further concurrency, although the offending regarding TF occurred several years before the offending against LT and ST. The offending against TF was over two days. The offending against ST, and the offending against LT was for a much more prolonged period, and each part of the Child Exploitation Material that was produced was of a different scene involving that abuse. However, I must take into account it was the same type of offending performed regularly. I have set out all my notional sentences in annexure C to this sentence. They total 28 years in prison. In sentencing you I must consider the principles of totality and your prospects of rehabilitation. The sentence should not be crushing.

   However, when considered as a whole, there is no doubt that your offending was very serious. It has had a significant impact upon your victims. And you have heard this in detail from their parents in the Victim Impact Statements.

   For your own selfish reasons, you were prepared to place at risk the wellbeing of their children and their future by the way you treated them. Clearly the need for denunciation and personal deterrence is significant, particularly given your previous offending, and the fact that [the 2009 sentencing judge], provided some leniency to you.

   I accept that you now understand the gravity of your offending and its consequences. You read a tearful apology to your victims and their families in court. This appeared genuine. That you were very upset at the consequences of what had occurred as a result of your offending. But the consequences for you are very serious. Whilst there is no evidence that you disseminated any of the child exploitation material, others must be deterred from making this material that can be sent to others. It puts all children at risk. I must impose a sentence that deters you and others, and keeps children safe in our community.

   I have set five notional s.26 sentences. I am now going to fix one sentence for your whole offending. Although I have already applied concurrency in those five sentences some further reduction is warranted taking into account principles of totality and proportionality. My final sentence must reflect the serious nature of your offending, your own personal circumstances and background and the purposes of sentencing that I have already set out.

   Consideration of the first appeal ground

2. The applicant contended that the sentencing judge erred by imposing a sentence which was manifestly excessive.  The principles governing the resolution of such an appeal ground are well-known.  They were recently and sufficiently for present purposes summarised in Hackett v The Queen [2021] SASCA 32, [8] (Kelly P, Lovell and Livesey JJA).

3. In the present case, although the applicant’s written submissions seemed to develop an argument that the starting point used to identify the various individual notional sentences were themselves erroneously excessive, in oral submissions the applicant’s counsel confirmed that he did not seek to suggest that there was any error in the individual notional sentences.  His submission was that the individual notional sentences were severe, but not so severe that they could themselves have been regarded as manifestly excessive.  His contention was the relatively narrow proposition that the sentencing judge must be taken to have erred in the way in which she took account of each of the subcomponents of the eventual single sentence and put them together in regard to totality and overall proportion.

4. That submission cannot be accepted. 

5. For the reasons expressed by the sentencing judge, denunciation and general and specific deterrence were strongly engaged.  The applicant had not been dealt with harshly for his previous child sex offending.  He continued to want to possess child exploitation material and his offending escalated into production of such material and actual sexual assault of child victims.  The applicant’s offending was abhorrent.  It caused grave harm to the three child victims with whom he actually interacted and to their wider families.  It deserved condign punishment.  The sentencing judge carefully and properly considered concurrency, totality and the need to avoid a crushing sentence. 

6. The submission that this court should infer error merely because a cumulative notional sentence of 28 years was reduced by a further six years, or a little over 21 per cent, for concurrency, totality and to avoid a crushing sentence must be rejected, having regard to the features of the offending and the other considerations identified during the sentencing judge’s remarks.  There is no basis for inferring error.  No doubt different judges might have structured the various notional sentences in different ways.  Indeed, some may well have thought that the offending against LT deserved greater punishment, with the result that the total before the further reduction would have been higher. 

7. Moreover, the submission pays insufficient regard to the very considerable reductions for concurrency which were made in reaching the notional sentences identified for each of the five groups of offences, namely:

   (a)For the offending against LT: a reduction of 19 years 9 months in respect of the 11 counts of aggravated producing child exploitation material and a further reduction of 2 years for the totality of the offending, giving rise to a reduction of 21 years 9 months;

   (b)For the offending against ST: a reduction of 9 years 1 month and 22 days;

   (c)For the offending against TF: a reduction of 5 years 3 months and 4 days;

   (d)For the offending against unidentified children: a reduction of in excess of 4 years[15];

   (e)For the possessing child exploitation material: a reduction of 2 years 3 months 1 week and 3 days.

   [15]   See footnote 6 above.

8. The applicant must be refused permission to appeal against his sentence.

   Conclusion

9. The following orders must be made:

   (a)The respondent’s application to amend is allowed;

   (b)Count 3 of the information relating to DCCRM-23-008346/MCCRM-22-017248, dated 20 December 2022, is amended–

   (i)In the “Offence Details”: by deleting the words “Under 17 years” and replacing them with the words “under 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act, 1935”; and

   (ii)In the “Particulars”: by deleting the words “Section 49(3) of the Criminal Law Consolidation Act, 1935”.

   (c)The applicant is refused permission to appeal against sentence.