Mead (a pseudonym) v The King; R v Mead (a pseudonym) - [2025] SASCA 3

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MEAD (A PSEUDONYM) v THE KING; R v MEAD (A PSEUDONYM)
[2025] SASCA 3
Judgment of the Court of Appeal
(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice B Doyle)
30 January 2025
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 - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against conviction and application by Director of Public Prosecution to appeal against sentence.
The applicant was charged with the offence of sexual abuse of a child and two counts of assault occasioning actual bodily harm. He entered a plea of guilty in relation to the sexual abuse charge but disputed several particulars of the charge and the period over which the offending was said to have occurred. He entered a plea of not guilty in respect of the assault charges. The counts involved the same complainant, who was a young female at the time of the offending. With the exception of one particular which was not proved, the judge found that the disputed particulars of the sexual abuse of a child allegation were made out, and that the applicant was guilty of the two assault charges.
The applicant seeks permission to appeal against his conviction in respect of the assaults (and in respect of the disputed particulars relating to the sexual abuse of a child) on three grounds. He contends that the trial judge erred by bolstering the complainant’s credibility on the basis of consistency of account (Ground 1), improperly relied upon school attendance records to support the complainant’s version of events (Ground 2), and failed to attend to burden and standard of proof by failing to consider whether the applicant’s account was negatived as a reasonable possibility (Ground 3).
Held (the Court) granting permission to appeal but dismissing the appeal against conviction:
1.Properly understood, the trial judge was referring to the internal consistency of the complainant’s evidence in the course of the trial. This did not offend the bolster rule nor assume the truth of the evidence.
2.The trial judge had regard to the complainant’s school attendance for the purpose of assessing the extent to which it tended to support, or not support, her account and the applicant’s account. There was no error in that approach.
3.When considered as a whole, it is sufficiently clear from the trial judge's reasons that he had regard to all the evidence and rejected the reasonable possibility that the accused’s account (in respect of the contested issues) was true.

The trial judge utilised a starting point of seven years imprisonment for the sexual abuse charge. After a reduction for the plea of guilty, making the sentences for the two assaults wholly concurrent, and making a reduction for totality, the judge imposed a cumulative head sentence of eight years imprisonment, with a non-parole period of four years.
The Director seeks permission to appeal on the ground that the sentence imposed was manifestly inadequate, as the starting point adopted by the trial judge failed, without explanation, to adhere to the guidance provided by this Court’s decision in R v D (1997) 69 SASR 413, the level of concurrency marked the overall sentence with error, and the fixing of a non-parole period at 50 per cent of the head sentence did not reflect the gravity of the offending conduct.
Held (the Court) granting permission to appeal and allowing the appeal:
1.In respect of the offence of sexual abuse of a child, the circumstances of the offending were such that there was a case for adopting a starting point of more than ten years imprisonment. The matters raised by the applicant including with respect to delay were capable of militating against the adoption of a starting point in excess of ten years imprisonment, but they were not capable of justifying a starting point of seven years imprisonment.
2.Whilst there was scope to employ partial concurrency, this did not extend to making the terms of imprisonment notionally imposed for the assaults wholly concurrent with one another.
3.Whilst there was scope for a relatively generous approach to the non-parole period to be adopted by the sentencing judge, when applied to a head sentence which was itself too low and manifestly inadequate, the non-parole period fixed at 50 per cent of that period was manifestly inadequate.
4.The sentence imposed was manifestly inadequate.
5.Even allowing for the double jeopardy considerations which require distinct consideration, reasonable consistency in sentencing standards warrants intervention in this case. Permission to appeal against sentence should be granted.
6.The applicant is to be re-sentenced to a combined head sentence of 11 years and six months imprisonment, with a non-parole period of six years and six months.

Evidence Act 1929 (SA) s 34M; Criminal Law Consolidation Act 1935 (SA) ss 20, 49(1), 50, 52 and 53; Criminal Law Procedure Act 1921 (SA) ss 157(1)(a)(ii) and 157(1)(a)(iii); Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 11, referred to.
R v D (1997) 69 SASR 413; R v Ametovic [2024] SASCA 153, applied.
Douglass v The Queen (2012) 86 ALJR 1086, distinguished.
De Silva v The Queen (2019) 268 CLR 57; Director of Public Prosecutions v Karazisis (2010) 31 VR 634; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Everett v The Queen (1994) 181 CLR 295; Fleming v The Queen (1998) 197 CLR 250; Hili v The Queen (2010) 242 CLR 520; Liberato v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193; Palmer v The Queen (1998) 193 CLR 1; R v Berry [2024] SASCA 116; R v Buttgieg [2020] SASCFC 38; R v Cekanauskas [2024] SASCA 154; R v C, M [2014] SASCFC 62; R v Elliot (2001) 121 A Crim R 254; R v Henderson [2023] SASC 42; R v Kelly [2023] SASC 22; R v Lian [2023] SASC 122; R v McIntyre (2020) 138 SASR 17; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Seymour (a pseudonym) [2024] SASCA 41; R v V, AJ [2012] SASCFC 10; R v Yaroslavceff [2022] SASC 123; Warner v The King (2022) 142 SASR 275; Wong v The Queen (2001) 207 CLR 584, considered.

MEAD (A PSEUDONYM) v THE KING; R v MEAD (A PSEUDONYM)
[2025] SASCA 3
Court of Appeal – Criminal: S Doyle JA, Bleby JA and B Doyle AJA

THE COURT: The applicant for permission to appeal against conviction was charged on Information with the offence of sexual abuse of a child[1] and two counts of assault occasioning actual bodily harm.[2] The counts involved the same complainant, who was a young female at the time of the offending. The applicant entered a plea of guilty in relation to the sexual abuse charge, but disputed several particulars of the charge and the period over which the offending was said to have occurred. He entered a plea of not guilty in respect of the two assault charges.
[1] Contrary to Criminal Law Consolidation Act 1935 (SA), s 50.
[2] Contrary to Criminal Law Consolidation Act 1935 (SA), s 20.
By consent, the disputed facts hearing in relation to the contested particulars of the sexual abuse of a child offence proceeded concurrently with a trial by judge alone of the assault charges. With the exception of one particular which was not proved, the judge found that the disputed particulars of the sexual abuse of a child allegation were made out, and that the applicant was guilty of the two assault charges. The judge gave detailed reasons for those findings.[3]
[3] [2024] SADC 3 (‘Reasons’).
In sentencing the applicant, the judge utilised a starting point for the sexual abuse charge of seven years imprisonment. After a reduction for his plea of guilty, making the sentences for the two assaults wholly concurrent, and making a reduction for totality, the judge imposed an effective cumulative head sentence of eight years. He fixed a non-parole period of four years.
The applicant seeks permission to appeal against his conviction in respect of the assaults (and in respect of the disputed particulars relating to the sexual abuse of a child count) on three grounds.[4] The Director of Public Prosecutions seeks permission to appeal against the sentence imposed, arguing it is manifestly inadequate.[5]
[4] Criminal Law Procedure Act 1921 (SA), s 157(1)(a)(ii).
[5] Criminal Law Procedure Act 1921 (SA), s 157(1)(a)(iii).
To the extent that the grounds of appeal against conviction require permission to appeal, that permission should be granted, but the appeal should be dismissed. In respect of the sentence imposed on the applicant, permission to appeal should be granted to the Director and the appeal upheld. The applicant should be resentenced on the basis set out later in these reasons.
The circumstances of the admitted and alleged offending
In respect of the offence of the sexual abuse of a child, as amended, the Information alleged that:
[The applicant] between the 22^nd day of May 2003 and the 28^th day of November 2006 at Craigmore and other places, maintained an unlawful sexual relationship with [the complainant], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with her, namely:
(a)performing [an] act of cunnilingus on her or on more than one occasion;
(b)inserting his penis into her vagina on more than one occasion;
(c)inserting his penis into her anus on more than one occasion;
(d)causing her to perform fellatio on him on more than one occasion;
(e)urinating on her on one occasion; and
(f)inserting a beer bottle into her vagina on one occasion.
The contest on the disputed facts hearing related to the conduct particularised in paragraphs (c), (e) and (f) and, in respect of the balance of the particulars, the time period over which they were alleged to have occurred.
The complainant was born in May 1990. The prosecution case was that the applicant met and almost immediately commenced a sexual relationship with the complainant when she was 13 years of age, in early 2004. The applicant, who was born in May 1978, admitted an unlawful sexual relationship and that the particularised allegations of penile-vaginal intercourse, fellatio and cunnilingus did occur, but said that they first met in September 2004 and did not commence a relationship until nearing Christmas 2004 (that is, when she was about 14 and a half years old). It was not in dispute that they did live together for a period and that she became pregnant with his child in March 2006. The complainant ultimately gave birth to a son.
The counts of assault occasioning actual bodily harm alleged that between 21 May 2004 and 23 May 2005 at Tranmere, and between 1 May 2006 and 31 December 2006 at Blair Athol, the applicant assaulted the complainant occasioning actual bodily harm. Those allegations were denied by the applicant.
The complaints advanced by the applicant on the conviction appeal focus upon the judge’s reasons and do not require a detailed consideration of the evidence, but the circumstances of the alleged (and found) offending bear on the proposed sentence appeal. It is therefore convenient to summarise the complainant’s account by reference to the trial judge’s findings, before briefly identifying the main areas of dispute by reference to the applicant’s account.
The complainant’s account
The complainant’s parents separated when she was three months old. In early 2004, when she was 13 years old, she had recently moved from her mother’s house to live with her father. Her father was an alcoholic and a neglectful parent. She would frequently stay at friends’ houses for weekends, including at the house of a similarly-aged friend, CH.
It was on one such occasion in February 2004 that she met the applicant, at a birthday party a few houses away. The applicant offered to take the complainant and CH to get soft drink. He bought them alcohol and drove them to his house at Craigmore where they spent time together getting drunk.
After this, the applicant regularly came past CH’s house when the complainant was there and would talk to them and sometimes take them to Hungry Jack’s or similar. He sometimes took them to the cinema. He bought the complainant a mobile phone with phone credit so he could speak directly to her.
The complainant attended the applicant’s Craigmore house in mid to late April 2004. The applicant had been drinking and went to lie down because she felt sick. The applicant tried to kiss her. He pulled her pants down despite her attempts to pull them back up and performed cunnilingus on her. This continued even though she was crying. When he finished he said ‘you’re mine now’.
The complainant was confused, upset and angry and did not know how to process what was happening to her. She felt embarrassed, betrayed, scared and upset. She avoided his contact for a while. She started going off the rails with her schooling. The applicant persisted and kept coming to CH’s house and offering to take them out to do things. She began to trust him again.
For the applicant’s 12 May 2004 birthday, there was a party at his Craigmore house around that date. The complainant and CH were invited to attend after two individuals who did not approve of him spending time with them had left. The complainant became intoxicated at the party drinking whisky supplied by the applicant. After others had left he took her down the hallway into his bedroom and placed her on the bed. He engaged in penile-vaginal sex with her. From this point the complainant believed the applicant loved her and she willingly continued to see him regularly. He would take her and CH to places and buy them necessities when they needed them. She explained that he had instructed her to tell others she was 15, rather than 13 or 14 years old.
As the complainant’s fourteenth birthday approached in late May 2004, the applicant made a big deal of the fact and organised to take her to the Hilton Hotel in the city where they played Xbox and later, after some others had left, he made a big deal about how they were going to have ‘birthday sex’ to celebrate her birthday. He engaged in penile-vaginal sex with her.
After this time she started spending most of her time at his house, up to five or six nights a week. She believed the applicant loved her because he was having sex with her. The applicant would tell her that no one else was going to look after or love her. He was the only one providing food and shelter.
The complainant gave evidence that over time the applicant would become violent on occasions when he would initiate sex and she did not want to participate. He would become angry and then forceful with her and would hurt her afterwards if she was crying or being loud. He sometimes spat on her and kicked her and then left her alone, feeling ashamed and humiliated.
There was an occasion when he demanded oral sex. When she did not know how to do it, he placed his hands on the back of her head and forcefully made her perform oral sex on him. He then threw her on the ground and urinated on her, told her to clean it up and insulted her with vulgar language. He would also smack her in the mouth a lot when she was not wanting to participate in sexual acts with him, which was mainly when she was not really drunk and did not just acquiesce.
The complainant had very little in terms of clothing and possessions and lived off takeaway food. She was dependent on the applicant in that respect. Sometimes she would have to perform sexual acts to be allowed to have food.
The complainant said the sex became very regular while she was staying with him. She gave evidence of an occasion in the front bedroom at the Craigmore house when she was so drunk she could barely move, and the applicant had anal intercourse with her.
There came a time when the applicant moved to Tranmere and he re-connected with his daughter from a previous relationship. The complainant turned 15 while staying at this house. During this period she began talking back to the applicant a little more. One night the applicant’s daughter walked past their bedroom while the applicant and the complainant were having sex. The next morning he showed the complainant that he had recorded their activity on his laptop and said he would show it to people unless she continued to do what he wanted. He brought this threat up on many occasions.
On one occasion after they were both drunk and sexual activity was initiated, the applicant grabbed an empty beer bottle and inserted the neck of the bottle into her vagina, then pulled it out. She believed this was a punishment for speaking to one of the applicant’s friends earlier in the night.
The complainant gave evidence of an occasion at the Tranmere house that led to the first of the two charges of assault occasioning actual bodily harm. On the day in question, the applicant’s best friend was there at lunch time and he asked the complainant to make them something to eat. She cooked chicken schnitzel sandwiches for them both but deliberately left the applicant’s virtually raw, hoping he would get salmonella and provide her with an opportunity to leave. When he bit into his food he realised it was raw, became enraged and picked up a full can of Woodstock drink and threw it with force at her face from about four feet away. The can struck her in the face, splitting her upper and lower lips. He pursued her into the bathroom and threw her in the bath and punched her head and body repeatedly.
In early 2006 the complainant became pregnant with the applicant’s child. Her evidence was that he wanted her to have an abortion but on the day of the procedure she did not go ahead with it. As a result of this he became rude and horrible towards her.
The second event which was the subject of an assault charge occurred when the applicant was working at the complainant’s father’s adult bookshop business. The applicant saw that the complainant had received a message from another male and went into a jealous rage. He threw her down and tried to kick her in the face. She tried to protect her face with her hands. She suffered wrist damage.
The complainant reverted to living with her father for a while, before briefly returning to the applicant’s house and making a plan to move herself and her things. A little while after the birth of her child she secured a share house with a female friend and from that time never went back to live with the applicant or have a relationship with him. There was, however, ongoing communication, including by text messages.
The applicant’s account
The applicant gave evidence. He said he first met the complainant in September 2004 and did not commence a relationship with her until nearing Christmas 2004. He said the relationship continued throughout 2005 and that she fell pregnant to him in March 2006. The child was born in November 2006, by which time he was no longer residing with her. He said that nonetheless he continued to see her and communicated with her by phone, text or Facebook over the years in relation to his son. He said he paid child support.
The applicant denied that they had been to the Hilton Hotel together. He accepted that there had been a sexual relationship but denied the allegations of anal intercourse and violence. He denied videotaping her and he also denied asking her to have an abortion. He said that the relationship simply had its ups and downs, and that like any relationship, there was romance and there was arguing.

Although the applicant denied that they had had sex the first day they met he was unable to explain a Facebook message he had sent on 10 August 2009 in which he had said, in response to her allegations of abuse:
My dads a dv8 we both know that and as for the rest u fucked me the first day we met after lying about ur age u then proceeded to be the horniest kinkiest chick I’ve ever been with … look we both no how it really went down so stop the charade …
Appeal against conviction
The applicant’s grounds of appeal contend that:
(1)the trial judge erred as a matter of law in reasoning that it would have been difficult for the complainant to consistently maintain a fabricated story as recounted by her (Reasons [142]);
(2)the trial judge erred in relying on the complainant’s school records to support her version of events and as undermining the applicant’s account (Reasons [152]);
(3)the trial judge erred in the application of the burden and standard of proof by failing to determine whether the applicant’s account was negatived as a reasonable possibility (Reasons [151], [154]).
Ground 1: improper reliance on consistency of account
The focus of this ground of appeal is the judge’s observation at Reasons [142] in these terms:
In the court’s view, it would have been very difficult to consistently maintain a fabricated story of the extended, detailed, and striking nature reflected in the events recounted by the complainant.
The applicant contends that the judge erred in law by ‘bolstering the complainant’s credibility’ on the basis of consistency of account, without the circumstances falling within any exception to the prohibition against relying on self-serving statements.
The so-called ‘bolster rule’ is that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or cross-examination of another witness or in re-examination of the party or witness attacked.[6] That rule prevents the bolstering of a witness’ credibility by eliciting (from the witness or otherwise) that they made a previous out of court statement which is consistent with their testimony in court, save where an identified exception applies.[7] It operates independently of the rule against hearsay, which, subject to any identified exception, prevents such a statement being relied upon in proof of a fact asserted in the out of court statement.
[6] Palmer v The Queen (1998) 193 CLR 1 at [49] (McHugh J), citing the statement in R v Turner [1975] QB 834 at 842 that ‘in general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up’.
[7] The well-recognised exceptions comprise: complaints in sexual cases (as to which see now s 34M of the Evidence Act 1929 (SA)); statements made contemporaneously with the events in question (admitted as part of the res gestae); statements to rebut a suggestion of subsequent invention; and statements admitted under express statutory provision.
In this case, there was no evidence of complaint within the meaning of s 34M relied upon. Nor, save in one limited respect, was there cross-examination of the complainant with reference to any statements made by her to police.[8] Subject to that limited exception, there was no evidence to identify the content of any statements by the applicant to police.
[8] The applicant’s counsel put to the complainant in cross-examination that in a statement given to police on 28 September 2021 she had stated that she sought medical attention for the left wrist about two weeks after the incident.
In those circumstances, if the observation made by the judge set out earlier had been intended to suggest that the applicant’s in court evidence was consistent with earlier out of court statements she had made, that it was unlikely she would have been able to maintain that consistency if the account was fabricated, and that her credibility was enhanced as a consequence, the bolster rule would have been infringed. As well, the foundation for the observation would have been speculative, given there was no evidence (admitted in the trial) of the content of her earlier statements. The absence of cross-examination on any inconsistency would not be a basis to infer (much less deploy the proposition, for credit bolstering purposes) that there were earlier, consistent, statements.
However, in our view, the ground of appeal fails, for the reason that the relevant paragraph in the judge’s reasons should be understood as a comment on the fact that, throughout the course of her evidence in court (that is, in chief and under cross-examination) she maintained a consistent account.
The relevant paragraph appears in a part of the Reasons which commences with the observation that because of the nature of the case, ‘a close and careful examination of the oral evidence is crucial’.[9] There then follows a reference to the complainant’s evidence being given in a clear and confident manner with a matter of fact demeanour and presentation.[10] The judge then observed that the applicant was consistent as to the narrative of what was a long, complex and traumatic series of alleged events describing a relationship that spanned a period of two years nearly 20 years ago.[11] The judge then observed:[12]
The complainant’s evidence was clear and consistent over time in nearly every regard, with a single exception to which I will later return, concerning all the allegations surrounding the particulars of the Sexual Abuse of a Child offence and the facts and surrounding circumstances comprising the two charges of Assault Occasioning Actual Bodily Harm.
Yes, there were some occasional inconsistencies as to exact dates and times, but those are entirely what would be expected after the passage of time and considering the significant number of matters needing to be recalled from some time ago.
[9] Reasons [138].
[10] Reasons [139].
[11] Reasons [139].
[12] Reasons [140]-[141].
The ‘single exception’ was a reference to the complainant’s evidence in respect of the particular alleging anal intercourse, which the judge dealt with later in the Reasons. The judge’s observations in that context do not entail any consideration of consistency between evidence given in court and out of court. Likewise, the ‘occasional inconsistencies’ relate to inconsistencies in the course of her evidence.
The paragraph about which complaint is made immediately followed the two paragraphs set out above. In all the circumstances it is tolerably clear that it was a comment on the internal consistency of the complainant’s evidence in the course of the trial. To remark upon that, and to treat it as a factor supporting the credibility or reliability of the complainant, was not to offend the ‘bolster rule’. Nor did it in some way assume the truth of the evidence. On the contrary, it posited the likelihood or unlikelihood of being able to be consistent about a concocted or imagined, as distinct from an actually remembered, sequence of events, as a step in the process of considering whether the testimony is accurate and true. How compelling or weighty that consideration may be is essentially a matter of fact for the decision-maker. No error, and no error of law, is established.
Ground 2: improper reliance upon school attendance records
In the course of the evidence of an investigating officer, a document that officer had obtained from the Department of Education consisting of the complainant’s school records was tendered by consent. It contained the complainant’s grades and references to her attendance (or non-attendances) throughout 2003 and 2004.
In the course of the Reasons, the trial judge observed:[13]
The school records tendered are entirely consistent with the complainant’s evidence that she met the accused in February 2004, started seeing him more regularly between then and April 2004, at which time she commenced having sex with him and neglecting her schoolwork, leading to her, shortly after that, effectively moving in with him and abandoning school by around or just after May 2004. The school records show the complainant’s attendance and performance dropping significantly between April and June 2004, and her failing to attend at all after 30 June 2004. The records are considerably less consistent with the accused’s evidence that the two met for the first time in September 2004 and did not have sex until Christmas 2004.
[13] Reasons [152].
The applicant contends that the judge erred in that his reliance upon the exhibit assumed the truthfulness of the complainant’s account because it assumed that she did indeed meet the applicant in February 2004. We do not accept this argument. The judge had regard to the school attendance material with a view to assessing the extent to which it tended to support, or not support, either the complainant’s account or the applicant’s account, with a view ultimately to determining whether the complainant’s account was true.
The applicant also contends that if the presumption of innocence had been applied, and therefore the correct standard of proof, the records were irrelevant. That submission draws upon another submission that, bearing in mind the breadth of potential explanations for what was recorded in the exhibit (by way of attendance), the records had no probative value.
The applicant does not contend that the records should not have been received because their tender involved reliance upon them for a hearsay purpose. Had objection been taken, they would likely have been admissible under a statutory provision,[14] but no objection was taken. They were therefore admitted for purposes including the proof of the facts asserted within them. They were admissible to prove the complainant’s attendance and absence from school. Given the complainant’s account, her attendance or absence from school had the capacity to bear on a fact in issue because it had the capacity to make her account more or less likely. That the records did not state the reason for her absence did not deprive them of relevance, although it was relevant to the weight that could safely be placed on them as providing independent support for her account.
[14] Evidence Act 1929 (SA), ss 52 and 53.
The prosecutor made a submission in his address that the complainant’s evidence was ‘supported, to some extent, by the school records’. It was submitted that the drop-off in attendance shown by the records tended to support her assertion that she stopped attending school because essentially her days were being spent with the applicant when she was 13 years old. The prosecutor also opened on the basis that the school attendances were relevant. Defence counsel did not object to the evidence or the submission, and did not emphasise the alternative explanations.
Different considerations might have applied if the school attendance reports had contained (or been based on) out of court assertions by the complainant as to the reasons for her absence. The ‘bolster rule’ may have been engaged in those circumstances, and the documents may not have been admissible in exception to the hearsay rule.
It may be correct to say that, given the applicant’s evidence that he only met the complainant in September 2004 and that she ‘never really went to school’, the records were not demonstrably inconsistent with his account. It might have involved an error of fact to find otherwise, but the trial judge observed only that the records were less consistent with his account than they were with the complainant’s account. No error of law is demonstrated, and it is not said the verdict is unreasonable or unsupported by the evidence. This ground fails.
Ground 3: failure to attend to burden and standard of proof
The applicant contends that the judge failed to act consistently with authority that recognises that in a case where an accused gives evidence on oath, a guilty verdict cannot be returned unless the jury finds that the accused’s account was not reasonably possibly true.
The applicant draws attention to the following paragraphs which appear towards the end of the part of the Reasons headed ‘Consideration’.[15]
Overall, the accused was not a convincing or compelling witness.
…
Standing back, the narrative told by the complainant was a complex, chilling and ultimately, compelling and entirely convincing account of the grooming, manipulation, and control of a young girl by an older man over the course of two years. It had the distinct ring of truth to it.
Carefully considering all the evidence, and considering but notwithstanding the accused’s evidence, the court finds that the complainant was an entirely credible and honest witness whose evidence was entirely truthful, whose evidence with one exception was also completely reliable and accurate as to the contested allegations.
[15] Reasons [151], [153] and [154].
The applicant’s essential complaint is that these passages indicate that the trial judge only went so far as to decline positively to accept the applicant’s evidence, and did not involve a rejection of it as a reasonable possibility.
Before considering that submission and the authorities upon which reliance is placed, it should be noted that immediately following these passages, the judge continued:[16]
[16] Reasons [155]-[156].
The one exception was the contested particular of anal intercourse. The complainant’s evidence was extremely brief and unparticularised as to that event, which she said occurred on an occasion when she was extremely drunk. Whilst the court finds that the complainant believes it occurred, and it may have occurred, the lack of detail and context, and the limitations on the complainant’s evidence as to the topic, together with a lack of consistency in cross examination on the topic mean that the court cannot find the event established beyond reasonable doubt. After careful consideration, the court however does not find this conclusion casts doubt on the remainder of the complainant’s evidence.
Conclusions
At the end of the day, with that single qualification, having given all the evidence the closest consideration, including importantly, the defence case and the accused’s evidence, the court finds that the complainant’s evidence was both credible and reliable, and should be accepted beyond reasonable doubt.
The applicant relied upon observations made in Liberato v The Queen (‘Liberato’),[17] Murray v The Queen (‘Murray’),[18] Douglass v The Queen (‘Douglass’)[19] and De Silva v The Queen (‘De Silva’).[20]
[17] (1985) 159 CLR 507 at 519 (Brennan J).
[18] (2002) 211 CLR 193 at [23] (Gaudron J), [57] (Gummow and Hayne JJ).
[19] (2012) 86 ALJR 1086 at [12]-[13] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[20] (2019) 268 CLR 57 at [9]-[10] (Kiefel CJ, Bell, Gageler and Gordon JJ).
In terms, the observations in Liberato, supplemented by those in Murray and as summarised and affirmed in De Silva, were concerned with the need for a direction to a jury in order to avoid risks associated with the misapplication or non-application of the burden of proof. The risks are that the jury may erroneously consider that it may be enough, in order to conclude the question of guilt, merely to form a preference for the complainant’s evidence over the accused’s evidence and, relatedly, that the jury might wrongly apprehend that they ought only find the accused not guilty if they positively believe the accused’s account. The refinement to the so-called Liberato direction endorsed by the plurality in De Silva, drawing upon observations made by Wheeler JA in Johnson v Western Australia,[21] also reinforces the proposition that even in a case where the jury entirely rejects the accused’s account, it remains necessary to scrutinise the prosecution evidence to determine whether guilt has been proved beyond reasonable doubt.
[21] (2008) 186 A Crim R 531 at 535 [14]-[15].
None of these authorities suggests that the evidence of the complainant or the accused should be considered in isolation from one another, or in isolation from the other evidence relevant to the facts in issue to which those witness’ testimony relate. Nor do they suggest that in some way it is wrong ultimately to form a preference for one witness’ testimony over another. The generally-required directions are instead designed to guard against the jury being distracted from the requirement of proof by the prosecution beyond reasonable doubt, and to guard against the simplistic and wrong reasoning that merely to reach the point of forming a preference for the complainant’s evidence over that of the accused is sufficient in order to be satisfied beyond reasonable doubt of the accused’s guilt. The requirement that the accused’s account be negatived as a reasonable possibility (assuming that account would render him or her innocent) is nothing more than the corollary of the proposition that guilt must be proved beyond reasonable doubt. It is not a requirement separately to consider and to reject that evidence beyond reasonable doubt with reference only to the evidence of the accused in chief and under cross-examination, before a verdict of guilt can be reached.
Douglass involved a trial by judge alone. The Court allowed the appeal, ordered that the verdict of guilty be set aside, and directed that a verdict of acquittal be entered, finding that in view of the designedly exacting standard of proof, in circumstances where the evidence of the child complainant had a number of frailties which went to its reliability, and where the accused had given evidence on oath in a manner which did not assist the prosecution, the guilty verdict was unreasonable.
The Court also expressed the view that the trial judge’s reasons were inadequate, for the reason that the judge’s failure to record any finding respecting the appellant’s evidence left as one possibility that the judge ‘simply preferred [the complainant’s] evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt’. The absence of reasons sufficient to exclude that possibility constituted legal error, but in view of the conclusion reached as to the unsafeness of the verdict, it was not necessary for the Court to address the consequence of that error.[22]
[22] Douglass (2012) 86 ALRJ 1086 at [14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
The applicant’s argument in this Court was not initially framed as a complaint about the adequacy of the judge’s reasons; a more fundamental proposition was advanced, namely, that the judge did not reject the applicant’s account as a reasonable possibility. In the course of oral argument, the applicant’s senior counsel also submitted that the reasons were inadequate.
In our view, however, neither the larger proposition, nor the complaint of inadequate reasons, can be sustained. The circumstances in Douglass are to be distinguished. In Douglass, the trial judge made no finding or observation about the accused’s evidence at all, save to observe that the judge did not find anything in the accused’s demeanour that assisted the prosecution.[23] The argument that in accepting the complainant’s account, the judge was necessarily rejecting the reasonable possibility that the accused’s evidence was true (which was the approach taken by the Court of Criminal Appeal) was not embraced by the High Court in circumstances where the judge had stated that he was satisfied beyond reasonable doubt only of the ‘truthfulness’ of the complainant’s account, without addressing the distinct question of its reliability. Evidently, truthfulness was understood in that context to mean the apparent credibility, in the sense of honesty, of the child’s evidence.
[23] Douglass (2012) 86 ALRJ 1086 at [7] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
Importantly, in the present case, the Reasons do not suggest that the judge considered the truthfulness of the complainant’s account and therefore preferred it to the applicant’s account, without a consideration of whether it was reliable, or without a consideration of the applicant’s evidence.

The applicant was found not to be a convincing or compelling witness. It is true that that conclusion alone does not show that the judge rejected the reasonable possibility that his evidence was accurate. But the Reasons expressly state that the complainant’s evidence was found to be both truthful and reliable having considered and notwithstanding the applicant’s evidence.
The ultimate conclusion was that ‘having given all the evidence the closest consideration, including importantly, the defence case and the accused’s evidence, the court finds that the complainant’s evidence was both credible and reliable, and should be accepted beyond reasonable doubt’.[24] In our view this makes clear that, correctly, in deciding the ultimate issue, the judge had regard to all the evidence, and it is consistent only with the conclusion that the judge rejected the reasonable possibility that the accused’s account (in respect of the contested issues) was true. The features that in Douglass left open the possibility of error are absent here.
[24] Reasons [156].
In a case such as the present, it is preferable that a trial judge expressly state (if it be the fact) that the judge has rejected the reasonable possibility that the accused’s innocent account is true. But it does not follow that reasons will be inadequate, or that the conclusion can be reached that the trial judge failed to do so, simply because the judge has not explicitly said so. A judgment may show by implication that the correct principles of law have been applied.[25]
[25] Fleming v The Queen (1998) 197 CLR 250 at [30] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
Here, read in its entirety, and consistently with the earlier direction the judge gave himself concerning the burden and standard of proof,[26] it is sufficiently clear that the judge (a) considered the complainant and her account to be compelling and convincing, (b) considered the applicant not to be convincing or compelling witness, and (c) with reference to all the evidence, found beyond reasonable doubt that the allegations made by the complainant, with one exception, were proved, and that the applicant’s evidence that he was innocent of those allegations, was not a reasonable possibility.
[26] Reasons [22].
That the judge did not engage in a kind of simplistic reasoning, along the lines that the complainant being the better witness than the applicant the charges were therefore proved, is also evident from his non-satisfaction beyond reasonable doubt of the particular offence concerning anal intercourse.
Disposition
To the extent that it is necessary, permission to appeal against conviction on each ground should be granted, but the appeal against conviction should be dismissed.
Appeal against sentence
Following delivery of the Reasons, the judge heard sentencing submissions and received a significant body of material relevant to sentence. The materials included an antecedent report,[27] a victim impact statement of the complainant and some 18 supportive character references.
[27] The prior convictions included carry offensive weapon, unlawful possession and producing cannabis in 2002, possession of a firearm without a licence in 2004 (a sawn off shotgun), failing to store ammunition in 2011, throw missile to cause injury or cause damage drive without due care in 2012, two assaults in 2012 and import prohibited imports in 2015.
The complainant’s victim impact statement described the prolonged psychological impact upon her of the sexual abuse and coercive controlling behaviour of the applicant and the impact it has had on her development. She has experienced post-traumatic stress disorder, anxiety, disassociation, depression, alcohol dependency, hypervigilance and sleep difficulties.
She became pregnant at 15 years of age and had a child. The pregnancy and birth were difficult. Life has been very difficult for her ever since.
The physical injuries she suffered in consequence of the assaults included a split lip and a fractured wrist with tendon damage.
Sentencing remarks
In sentencing the applicant,[28] the judge outlined the conduct found proved. He went on to say that:[29]
[28] Remarks on sentence made on 6 May 2024 (‘sentencing remarks’).
[29] Sentencing remarks, pp 2-4.
The court will not repeat in full what you did, but it is a chilling and shocking tale of coercive control and exploitation of a young girl. It included you requiring sex from her almost daily, oblivious to her feelings about it, rationing food in exchange for sex with her, and on at least one occasion urinating on her and penetrating her with a beer bottle.
This continued for two years.
Violence became a part of the relationship, and whilst you are only to be penalised for your charged offending, it was in such a context that the two assaults occasioning actual bodily harm occurred.
The victim described how after she turned 15, she began to feel trapped in the situation she was in at your house. In her words she was sick of being abused, hurt, tormented and screamed at in what was now a violent environment.
On the day in question, you asked her to make you something to eat, so she gave you a virtually raw chicken schnitzel sandwich. She said that, in her reasoning at the time, she thought that maybe you might get salmonella, become sick and die, and maybe then she would get a chance to get away from you. That in itself is a picture of her immaturity and desperation.
When you realised however, that the sandwich involved raw chicken, you became enraged. You picked up a full can of Woodstock drink and threw it with extreme force at her face, from only about three to four feet away. The can struck her in the face splitting both of her upper and lower lips, causing them to bleed and swell.
You came at the victim, so in fear she ran into the bathroom and locked the door. You kicked the door in, threw her into the bath and repeatedly punched her to the head and body. She was unable to get medical attention for her injuries as she had no driver's licence, no money of her own and no other mode of personal transport, nor did she have any other family member that she could have realistically secured assistance from.
The victim, now 15, became pregnant to you. You became fearful that this would get you into trouble, so you and your sister pressured the victim to get an abortion, booking an appointment for her to have it and then taking her there for the appointment.
The victim didn't want to have an abortion and during the pre-procedure counselling, felt able to speak up and say that she didn't want to go through with it, and accordingly, she didn't go through with it.
This worsened your conduct towards her.
At this stage, you were working in the victim's father's adult bookshop business. By this time, the victim was five or six months pregnant.
On the day in question, she was at those premises with you, using the computer in the rear office area. She received a message from a male friend asking how she was going. You saw the message to her on the screen, however one of your rules was that she was not permitted to speak to any other males.
You flew into a jealous rage, grabbed hold of her and started beating her up. You commenced punching her and threw her to the ground. Then you started kicking her. Although she was five to six months pregnant, you kicked her in the stomach around the ribs. When she rolled into the foetal position to try and protect herself, you then went to kick her in the face and when she moved her hand to protect herself you connected with and fractured her wrist, also causing soft tissue and tendon damage.
She was injured, terrified and screaming because of what you did to her.
Rather than getting her any medical assistance you rang and told her father, with whom you were working in the adult bookshop, to come and take her out of the shop. He did so, and to his great discredit he did absolutely nothing to help her, other than take her away from the shop where she was obviously inconveniencing you with her pain and screaming.
The injury gave her pain and serious discomfort for a protracted period. That was the last straw, and with the help of a female friend, fortunately, she was ultimately able to move away from you.
Your appalling behaviour continued such that even when you attended the birth of your child and she was handed her child for the first time, your words to her were that she ‘wasn't going to be an arsehole's mother’.
Some years later you attempted to secure contact with the child, and indeed the references indicate that that has happened, and in the course of messaging, you tacitly in those messages to her acknowledged your appalling behaviour towards her.
Your sexual abuse has plainly had a catastrophic effect on this young woman's life. She suffered a range of ongoing psychological issues. It seriously interfered with her education, robbed her of a normal teenage life, sexualised her as a 13-year-old, and physically brutalised her, as reflected in the two serious assaults you perpetrated on what was a small, defenceless young girl who was entirely dependent on you.
In her victim impact statement, it is plain how profoundly your offending has affected her life. In it she documents the harrowing effect your actions had at the time. She said she felt trauma, fear, stigma, isolation, discrimination and pain.
She has had a plethora of issues and psychological challenges. Out of respect for her privacy, I will not repeat what she said, in short however she has suffered terribly because of what you've done. Having said that you will of course only be penalised by this court for your charged offending.
The judge went on to consider the applicant’s personal circumstances. The applicant had previous and subsequent criminal offending of various types, albeit with no prior sexual offending. He was, at the time of sentence, 45 years old. He recently married and has a child of that relationship. His wife had two other children, and he also had children from a previous relationship.
The judge noted the submission that the applicant had a weight problem which produced health issues that might cause difficulties in custody. The judge noted and considered the character references that showed the regard in which the writers held him. The judge had regard to the fact that in light of his family responsibilities a period of incarceration would leave them without his ongoing support.
The judge noted that the applicant had at times shown generalised remorse, referencing some of the text messages sent, but observed that the remorse did not extend to admitting his full behaviour before the court. Whilst he was not to be punished for that, it limited the credit to which he was entitled for actual remorse and acceptance of responsibility. The judge considered a 5 per cent discount on the sexual abuse sentence was appropriate in that regard, given the guilty plea, but noting it was a strong case.
In imposing the sentence outlined at the commencement of these reasons, which incorporated a starting point of seven years for the sexual abuse charge, the judge said:[30]
However, your offending is extremely serious. You groomed, used and abused a 13-year-old child, and that sexual abuse continued for an unrelenting period of over two years. The relationship itself was manipulating, controlling, coercive and violent. The offending was protracted. In the course of that, you committed two serious assaults on her, both of which occasioned her actual bodily harm. You interfered with her education, robbed her of a normal teenage life, and she became pregnant at 15. In all, she suffered greatly from your offending.
One of your subsequent texts to her, as set out in the judgment, clearly shows that you have no insight at all as to why it is wrong to have a sexual relationship with a 13-year-old child. 13-year-olds are not capable of making fully mature, responsible decisions about whether to have sex with somebody, and it is entirely the adult's responsibility to not do that and it is entirely the adult's fault if that adult does do that.
For the offence of sexual abuse of a child, from a starting point of seven years imprisonment, that will be discounted by the 5% for your plea of guilty to six years seven months and 24 days. For the assault occasioning actual bodily harm, when you threw the full can of drink into her face at point blank range, splitting her lips then repeatedly punched her, there will be a sentence of two years and six months imprisonment. For the assault occasioning actual bodily harm whereby you punched, beat and kicked the pregnant 16-year-old victim, fracturing her wrist while you tried to kick her in the face, there will be a sentence of three years imprisonment.
These sentences total 12 years, one month and 24 days imprisonment. Whilst in many ways your abuse of this child actually warrants that full sentence, on final review, in the court's view, such a sentence, particularly in light of the family situation, that you are now 20 years older and the totality of the circumstances, such a sentence would be crushing.
Accordingly, the sentence for the sexual abuse of a child will start today, however the two sentences for assault occasioning actual bodily harm will be concurrent with each other and each will commence five years from today. Hence the total period of nominal imprisonment of those concurrent and partially cumulative sentences will be eight years from today.
In light of all the matters raised by your counsel, in particular, the contents of the referee letters and your family responsibilities, the passage of time and the consequent unlikelihood of reoffending, there is scope for some leniency in the non-parole period, which will be four years from today. There is no basis to suspend or order the sentence be served on home detention.
Accordingly, the sentence is eight years imprisonment with a non-parole period of four years to date from today.
[30] Sentencing remarks, pp 5-6.
Principles governing manifest inadequacy and permission to appeal
The Director seeks permission to appeal in order to contend that the sentence imposed by the trial judge was manifestly inadequate.
Manifest inadequacy of sentence is a conclusion. It is not warranted simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases, nor because it differs from the sentence that the appellate court would itself have imposed. Intervention on the ground of manifest inadequacy in a case like this will be 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.[31] Absent an identified process error, it must be shown that the sentence imposed was unreasonable or unjust.[32]
[31] Hili v The Queen (2010) 242 CLR 520 at [58]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[32] R v Kelly [2023] SASC 22 at [36] (Lovell JA), referred to with approval in R v Berry [2024] SASCA 116 at [76] (Doyle and Bleby JJA, Hall AJA).
Demonstration of manifest inadequacy is not in and of itself sufficient to justify a grant of permission to appeal to the Director. For reasons related to a concern about double jeopardy, careful and distinct consideration should be given to the question of whether the Director has discharged the onus of persuading the Court that the case is an appropriate one for intervention.[33] In a case like the present where there is no suggestion that the granting of permission is required in order to lay down some new principle or guidance with respect to sentencing, but rather to correct a sentence which is submitted to be so inadequate as to undermine public confidence in the administration of justice, it may be necessary, in order to justify the grant of permission, to identify a more significant disparity between the sentence imposed and the permissible range than is required to demonstrate manifest inadequacy.[34]
[33] Everett v The Queen (1994) 181 CLR 295 at 299 (Brennan, Deane, Dawson and Gaudron JJ).
[34] R v Henderson [2023] SASC 42 at [39] (Livesey P and David JA), R v Kelly [2023] SASCA 22 at [101] (Bleby and David JJA), R v Yaroslavceff [2022] SASCA 123 at [71]-[73] (Doyle JA).
Even then, there may be matters, associated with the law’s concern about double jeopardy, prosecutorial delay or the conduct of the prosecution in the course of sentencing submissions,[35] that militate against the defendant being twice vexed with an additional period of imprisonment (or, in the case where the sentence has been suspended, the imposition of an unsuspended period of imprisonment).[36]
[35] If the appeal proposed by the prosecution is inconsistent with the approach the prosecution took before the sentencing court, this may militate against a grant of permission: R v Henderson [2023] SASCA 42 at [45] (Livesey P and David JA), referring to Director of Public Prosecutions v Karazisis (2010) 31 VR 634 at [115] (Ashley, Redlich and Weinberg JJA, with whom Warren CJ and Maxwell P agreed).
[36] R v Henderson [2023] SASCA 42 at [45]-[46], [48] (Livesey P and David JA).
The qualitative considerations[37] to which the observation that grants should be rare and exceptional directs attention, reflect important matters of public policy.[38] As was recently explained,[39] ‘rare and exceptional’ is better seen not as a test or criterion, or even principle, to be applied or satisfied in a particular case, but rather as a compendious reference to, or reflection of, the need to give separate and distinct consideration to whether there is not only error but a public interest in intervention that outweighs the hardship to the respondent in exposing him or her to the double jeopardy associated with being resentenced. In striking the right balance, the Court bears in mind that in some cases the identification of error without intervening in the result may itself contribute towards the achievement of the appellate court’s supervisory function in respect of sentencing.[40] However, whilst ensuring that prosecution appeals do not unduly circumscribe the sentencing discretion of judges,[41] the Court must also bear in mind the importance of equality before the law, and the systemic importance of relative consistency in the approach to sentencing.[42] In some cases that demands intervention, and not just identification of error, in order to maintain public confidence in the administration of justice.[43]
[37] R v Yaroslavceff [2022] SASC 123 at [71] (Doyle JA), referred to with approval in R v Kelly [2023] SASCA 22 at [96] (Bleby and David JJA), at [43]-[44] (Lovell JA).
[38] R v Henderson [2023] SASCA 42 at [43] (Livesey P and David JA).
[39] R v Ametovic [2024] SASCA 153 at [93] (S Doyle and Bleby JJA and B Doyle AJA).
[40] R v Elliot (2001) 121 A Crim R 254 at 257-258 (King CJ).
[41] R v Osenkowski (1982) 30 SASR 212 at 212 (King CJ).
[42] Everett v The Queen (1994) 181 CLR 295 at 306-307 (McHugh J), Wong v The Queen (2001) 207 CLR 584 at [6] (Gleeson CJ).
[43] R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ).
Contention of manifest inadequacy
Recognising that what must be shown to be manifestly inadequate is the sentence ultimately imposed (as distinct from steps in the reasoning or ingredients in the final sentence), the Director identified three aspects of the judge’s approach to sentencing which, it was submitted, were indicative of, or contributed to, error of the requisite kind.
First, and most significantly, it was submitted that the starting point adopted by the judge in respect of the offence of sexual abuse of a child failed, without explanation, to adhere to or engage with the guidance provided by the Court’s decision in R v D,[44] as affected by the subsequent amendment to s 49(1) of the Criminal Law Consolidation Act 1935 (SA).[45] The effect of that guidance is that in cases involving unlawful sexual intercourse with a child over the age of 14 years, where there are multiple offences over a period of time, a starting point of imprisonment for 10 years is appropriate.[46] The guidance does not deny that in each case it is necessary to have regard to considerations such as the nature and frequency of the offending, the duration of the period over which it occurred, the relationship between the offender and victim, including the extent to which the offender was in a position of trust and authority, or otherwise groomed or exploited the victim, the age and vulnerability of the victim, the age disparity between the offender and victim, whether the offending involved any use of force or coercion, the impact of the offending upon the victim, and the personal circumstances of the offender.[47] However, it was submitted here that given that on the judge’s findings the offending commenced before the complainant was 14 years old, and because of the sustained and serious nature of the offending and the surrounding circumstances, if anything, a starting point of more than 10 years was appropriate. It was submitted that the sentencing remarks did not reveal any sufficient reason why a starting point of seven years had been considered appropriate.
[44] (1997) 69 SASR 413.
[45] Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA), s 11.
[46] Edmonds v The Queen [2022] SASCA 11 at [54] (fn 9) (Livesey P, Doyle and David JJA), Warner v The King (2022) 142 SASR 275 at [77] (Livesey P), at [121] (Doyle JA).
[47] R v Berry [2024] SASCA 116 at [69] (Doyle and Bleby JJA, Hall AJA).

Secondly, it was contended that the level of concurrency the judge considered appropriate as between the head sentences for the three offences ‘marks the overall sentence with error’. In particular, it was contended there was no sufficient reason that the two sentences for assault occasioning actual bodily harm should be made wholly concurrent, given that each assault occurred on a different occasion, the latter occurring when the complainant was 5-6 months pregnant, and noting as well that the assaults did not occur during the course of or in relation to any of the particularised unlawful sexual acts.
Thirdly, it was contended that the fixing of a non-parole period at 50 per cent of the head sentence did not reflect the gravity of the offending conduct coupled with the lack of remorse and insight into some aspects of the offending which he continues to deny.
The Director pointed to the recent decisions in R v McIntyre,[48] R v Seymour (a pseudonym)[49] and R v Berry[50] with a view to supporting the ultimate conclusion of manifest inadequacy in this case.
[48] (2020) 138 SASR 17 (13 year old complainant, one instance of penile-vaginal sexual intercourse resulting in a pregnancy that was terminated; sentencing judge’s starting point of five years imprisonment contributed to manifestly inadequate combined head sentence of three years and nine months; appeal allowed and defendant resentenced with starting point of seven years and, following reduction for guilty plea, head sentence of five years and three months imposed, with a two-thirds non-parole period).
[49] [2024] SASCA 41 (offending commenced when complainant 15 years old, relationship over two years including various forms of intercourse occurring consistently despite protestations; sentencing judge’s starting point of six years contributed to manifestly inadequate combined head sentence of five years, eight months and 13 days, with non-parole period of 3 years; appeal allowed and defendant resentenced with a starting point of nine years imprisonment, reduced by 5% to eight years, six months and 19 days, with a non-parole period of five years and six months).
[50] [2024] SASCA 116 (offending comprising sexual abuse of a child occurred when complainant was 15 and 16 years of age, conduct included sexualised communications, indecent assaults and acts of fellatio; sentencing judge’s starting point of five years imprisonment part of sentencing package that resulted in imprisonment for seven years and six months with four-fifths non-parole period; Court on appeal considered that although a starting point less than 10 years imprisonment was appropriate in a flexible application of the standard, starting point as low as five years was too low and was lenient; no final view on manifest inadequacy expressed but sentence imposed was not so low as to undermine public confidence in the administration of justice such that permission to appeal refused).
The applicant, in resisting the Director’s application for permission to appeal, submitted that although the judge made no reference to R v D in the course of the sentencing remarks, the concerns and considerations underlying that decision had been regarded by the judge, and the analysis undertaken by him was an illustration of the flexibility permissible consistently with the guidance provided by R v D and the later authorities. Alternatively, if manifestly inadequate, the sentence was not so low as to undermine public confidence in the administration of justice.
In the course of oral submissions, the applicant placed particular emphasis on two matters as bearing on the appropriateness of the sentence.
First, the applicant emphasised that there had been considerable delay in the bringing of the charges in this matter. This submission was not based on any criticism of prosecuting authorities. The focus of the submission was the impact of delay of that kind on the defendant and the consideration that, if an offender has taken substantial and successful steps towards rehabilitation in that period, a severe sentence may frustrate rehabilitative progress and operate unfairly upon a defendant who has ordered their affairs whilst at large with a view to reorganising their life. The applicant drew attention to the reasons of Gray J in R v C, M,[51] in which a number of relevant authorities were collected in support of the conclusion that where lengthy delay has led to a chance of circumstances and rehabilitation, this can be a powerful matter of mitigation to which proper weight should be given.
[51] [2014] SASCFC 62 at [13]-[20].
The applicant submitted that the sentencing judge was giving voice to these considerations when, in the course of his remarks extracted earlier in these reasons, he said in respect of a sentence of over 12 years, that ‘in light of the family situation, that you are now 20 years older and the totality of the circumstances, such a sentencing would be crushing’.
Secondly, and relatedly, the applicant emphasised the number and quality of character references that had been provided. These were said to show that in the period after the sexual relationship with the complainant ended, he had not engaged in any similar offending and had become a parent who is held in high regard by friends and family and upon whom they have come to depend. Again, it was submitted that this consideration was referred to by the sentencing judge and should be understood as a reason why it was thought appropriate to identify a starting point lower than the period of imprisonment suggested by the R v D guideline.
Finally, the applicant pointed to the fact that, before the sentencing judge, the prosecutor had been somewhat equivocal when asked about the relevance of the R v D standard. The prosecutor had said that the standard was most applicable to children under 12 where there was a relationship of trust. The prosecutor then observed that the applicant had by his own admission cared for and been responsible for the complainant and had ‘in a very real sense, [been] her carer and he abused that trust and care’. The prosecutor continued, ‘[s]o perhaps that principles in R v D are not completely applicable to the situation but they are not far off, in my respectful submission’. Later, the prosecutor referred to the decision in Edmonds (a pseudonym) v The Queen[52] concerning the application of R v D.
[52] [2022] SASCA 11.
Consideration
As has been noted, the applicant’s sexual abuse of the complainant commenced when the complainant was 13. The course of offending extended over a little more than two years. The sexual acts found proved included cunnilingus, fellatio, penile-vaginal sex and other violent and depraved acts such as inserting a beer bottle in the complainant’s vagina and urinating on her.
Even putting the two assault charges to one side it is plain that the sexual acts that occurred frequently over the relevant period frequently involved violence or the threat of it.
The complainant fell pregnant to the applicant, in what was a predictable consequence of his ongoing sexual abuse of her.
Not only was the complainant objectively vulnerable to the applicant, but he fostered and exploited her dependence upon him for basic necessities, knowing that she was being neglected by her own father. The applicant supplied the complainant with alcohol to further his purposes.
Bearing in mind these considerations which go to the extent and seriousness of the offending, in light of the approach in R v D as repeatedly affirmed in this Court, there was, as the Director submitted, a case for adopting a starting point of more than 10 years imprisonment.
The complainant’s victim impact statement makes for difficult reading. It provides a vivid and disturbing illustration of the kinds of harm caused to victims of persistent sexual abuse to which Kourakis CJ referred in R v Lian.[53]
[53] [2023] SASC 122 at [99].
The applicant is right to identify circumstances that called for consideration in the nuanced application of the R v D guidance; in particular, the circumstance that in the relatively lengthy period of delay between the offending and the time of sentence, the applicant appears to have made some positive progress in his life, and to have earned the trust and respect of a large number of supporters.
But in a case like this, delay and rehabilitation can only go so far. They should not be given ‘too much weight’.[54] Whilst these considerations may mitigate the sentence otherwise appropriate, equally, it should not be forgotten, as Bampton J observed in R v C, M, that sexual offending often remains undetected for many years and the prosecution of such offending relies upon the preparedness of victims of abhorrent offending and witnesses to it to report the abuse.[55] Undue lenience in response to the passage of time ought not act as a deterrent to victims who may have taken some time to feel able to pursue a formal complaint from then doing so.
[54] R v V, AJ [2012] SASCFC 10 at [3] (Doyle CJ).
[55] [2014] SASCFC 62 at [57].
Further, it could not be said that there is no role for specific deterrence in the applicant’s case. As the judge himself observed, the applicant did not admit all the conduct and aspects of his evidence revealed an ongoing lack of insight. His evidence to the effect that the relationship had its ups and downs like all relationships, but included romance, suggests a failure to come to grips with the abuse of position and power that existed even on his own account.
In summary, the mitigating factors persuasively emphasised by the applicant’s counsel on appeal were not capable of justifying a starting point of seven years imprisonment for the sexual abuse charge. They were capable of militating against the adoption of a starting point in excess of ten years imprisonment, but in our respectful view they were not capable of justifying a sentence based on a starting point of three years lesser duration.
Turning to questions of concurrency, the Director is right to submit that given that the assaults occasioning bodily harm occurred on different occasions and were distinct from the violence involved directly or indirectly in the course of the sexual offending, there was scope for partial concurrency, but not to the extent of making the terms of imprisonment notionally imposed for the assaults wholly concurrent with one another.
In relation to the non-parole period, there was scope, particularly in view of some of the personal circumstances pertaining to the applicant, for a relatively generous approach to be adopted. But when applied to a head sentence which was itself too low, and indeed, manifestly inadequate, the non-parole period fixed at 50 per cent of that period was itself manifestly inadequate.
Subject to the question of permission to appeal, we would allow the appeal against sentence. We would resentence the applicant on the following basis. For the offence of sexual abuse of a child, a head sentence of ten years should be imposed, reduced by 5 per cent on account of the guilty plea to a term of nine years and six months.
For the offences of assault occasioning actual bodily harm, the notional sentences identified by the judge of two years six months and three years respectively are appropriate. The second sentence should be partially concurrent with the first offence, so as to result in an effective sentence of four years in respect of those two offences.
Finally, recognising that the assaults did occur in the context of the ongoing sexual abuse of the complainant, the term of imprisonment for the assaults should be made partially concurrent with the term of imprisonment imposed in respect of the sexual abuse of a child charge. A combined head sentence of 11 years and six months is appropriate. Having allowed for a significant measure of concurrency in structuring the sentence, we consider this to be a sentence which is proportionate to the overall criminality involved in the applicant’s offending. We would not make any further reduction for totality.
We would impose a non-parole period of six years and six months, which reflects a relatively low proportion of that head sentence. In large part that is in recognition of the fact that in the period since the offending ceased, the applicant appears to have taken a number of positive steps in his life and has not committed similar offending in the years that have passed since his abuse of the complainant, such that there is a lesser role of specific deterrence than might typically be called for in a case involving such serious offending.
As earlier explained, the conclusion of manifest inadequacy does not of itself dictate that appellate intervention is appropriate, such that permission to appeal should be granted. There is here, however, a significant disparity between the sentence that it has been concluded was appropriate and the sentence actually imposed. In our view the sentence imposed was so lenient as to undermine public confidence in the administration of justice in that, without apparent or sufficient justification, a course of offending which, if anything, was at the more serious end of the spectrum of offending involving victims aged 14 years or older, was met with a sentence that sat substantially below the range of sentences appropriate for offending of that kind.
In our view, even allowing for the double jeopardy considerations which require and have received distinct consideration, reasonable consistency in sentencing standards, which is important to confidence in a system that holds that like cases should be treated alike, warrants intervention in this case.
From the perspective of general deterrence, it is also of vital importance that it be understood that an offender who, by reason of persisting in the exploitation of a young girl for a long period, ends up in circumstances which might bear some superficial hallmarks of an adult relationship, such as living together, is not engaged in some kind of lesser offending than the range of offending addressed in R v D and the later authorities affirming and applying that approach.
Although the prosecutor was at first instance somewhat equivocal about the guidance provided by R v D, in our view, the position adopted was not at odds with the position now advanced, and the prosecutor did not make a submission that could be taken to amount to an acceptance that a combined sentence of the order actually imposed was within the range of appropriate sentencing outcomes.
The imposition of a more severe sentence on appeal will inevitably involve a degree of vexing, for a second time, of the defendant. Without minimising this consideration, this is not a case where this Court’s intervention would, as it might in a case where the defendant is imminently eligible for parole in accordance with the sentence originally imposed,[56] or has previously been allowed a suspended or home detention sentence, result in that more extreme or serious kind of vexing.[57]
[56] Cf. R v Cekanauskas [2024] SASCA 154 at [69] (S Doyle and Bleby JJA and B Doyle AJA)
[57] Cf. R v Henderson [2023] SASCA 42 at [130] (Nicholson AJA).
Disposition of the appeal
We would grant permission to appeal against conviction but dismiss that appeal. We would grant permission to the Director to appeal against sentence and we would allow the appeal against sentence. We would resentence the applicant to a term of imprisonment of 11 years and six months, and impose a non-parole period of six years and six months. Like the sentencing judge we would backdate that sentence to commence on 6 May 2024.