SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MORGAN (A PSEUDONYM) v THE KING
[2025] SASCA 31
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Auxiliary Justice Hall)
27 March 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES
The appellant sexually abused his stepdaughter, Ms B, over a period of almost five years and on occasions, did so in the company with her biological mother, Ms T. Acts of abuse alleged included physical contact offending between the appellant and Ms B, the appellant and Ms T engaging in sexual acts in the presence of Ms B, and the appellant inciting or procuring Ms B to engage in sexual acts with her mother.
After a trial by Judge alone, the appellant was found guilty of one count of maintaining an unlawful sexual relationship with a child (Count 1), contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), and one count of aggravated assault (Count 2), contrary to s 20(3) of the Act.
For Count 1, the Judge imposed a sentence with a starting point of 13 years’ imprisonment. For Count 2, the Judge imposed a sentence with a starting point of three months’ imprisonment, which was to be served concurrently with the sentence for Count 1. The final sentence imposed was a head sentence of 13 years’ imprisonment, with a fixed non-parole period of nine years.
A preliminary issue raised on appeal related to the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) and the effect the 2005 amendments to s 49 of the Act have on the sentencing principles established in R v D.
The appellant seeks permission to appeal on the basis the sentence imposed for Count 1 was manifestly excessive.
Held, per the Court, granting permission to appeal but dismissing the appeal:
1.Following the 2005 amendments to s 49 of the Act, the sentencing principles enunciated in R v D now operate where children are under or over the age of 14 years.
2. The sentence imposed for Count 1 was not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) ss 20(3), 49, 50(1), 74; Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA); Statutes Amendment (Child Sex Offences) Act 2022 (SA); Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA), referred to.
R v D (1997) 69 SASR 413, discussed.
BAF v The Queen [2021] SASCA 69; Baxter (A Pseudonym) v The King [2024] SASCA 64; Brooker v The King [2024] SASCA 135; Davies v The Queen (No 2) [2021] SASCA 44; Day v The Queen
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- Morgan (a pseudonym) v The King [2025] SASCA 31
- Case
- [2025] SASCA 31
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the sentencing judge erred in her assessment of the factual basis for the sentence, specifically regarding the age of the victim during the period of offending. Additionally, the court considered the relevance of the appellant's health conditions in custody and his prospects of rehabilitation upon release, and whether these factors, along with the nature and seriousness of the offending, justified the sentence imposed.
The court reasoned that while the sentencing judge initially stated the offending occurred when the victim was between 12 and 16 years of age, she later found the victim was not yet 12 until September 2016, meaning the offending spanned from when the victim was 11 to 16 years of age. The court acknowledged the appellant's lung condition and diagnosis of type 2 diabetes, but found that prison health services had made appointments and monitoring available, and that the appellant's condition was manageable. The court also considered the appellant's limited antecedents, good work history, and community support, but found these were of limited relevance given the seriousness of the offences and the length of the non-parole period. Applying the principles from *R v D*, the court noted that offences involving children under 12 years of age and extending over time typically attract a head sentence starting around 12 years, while offences against children over 12 might attract a starting point of around 10 years. The court found that the sentencing judge had properly considered the gravity of the offending, including the breach of trust and emotional manipulation, and had applied the relevant sentencing principles.
The appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The appellant suffers from a lung condition and, whilst in custody, he was diagnosed with type 2 diabetes.Sentencing considerations The Judge, in her sentencing remarks, stated that the offending occurred when Ms B was between 12 and 16 years of age. However, the Judge found at trial Ms B did not turn 12 years old until September 2016 and, therefore, the offending occurred when Ms B was between 11 and 16 years of age. The Judge received written references on behalf of the appellant’s family and friends. The support available to the appellant when released from custody was relevant to his prospects of rehabilitation. A previous employer of the appellant also confirmed the appellant would have employment available when released. The Judge stated this was of limited relevance given the length of the non-parole period and seriousness of the offending. The appellant submitted that whilst in custody, he had not been provided a special diet appropriate for his type 2 diabetes and that his condition was unstable. A report from the Prison Health Service revealed appointments and monitoring had been made available to the appellant, but that he had not always attended. He had been provided education about his diet; however, the Judge found it appeared he continued to make poor choices about what food he could purchase in prison. The Prison Health Service advised the Judge that the appellant’s diabetes is manageable. The Judge found there was no reason to think that the appellant’s ability to access care would be any different to what is available in the community. The Judge noted that the purpose of sentencing is to protect the safety of the community, to punish the appellant for his wrongdoing, to publicly denounce the behaviour, to recognise the harm done to the community and the victim, and to deter others from committing similar offences. The abuse was regular and included penetrative and non-penetrative acts. The appellant, as Ms B’s stepfather, breached her trust, and his emotional manipulation of her made the offending more serious. The Judge took into account the appellant’s limited antecedents, his good work history and previous contributions to the community. The Judge was satisfied the appellant has support available in the community when released. The Judge had regard to the case of R v D.[3] The Judge found that the following comment made by Doyle CJ in that case was relevant to the facts of this case:[4]… They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. … [3] (1997) 69 SASR 413. [4] R v D (1997) 69 SASR 413, 423. The Judge also outlined the general standards outlined in R v D, that offending involving a child under 12 years of age and extended over a period of time, could expect a head sentence with a starting point of about 12 years imprisonment. For offending against a child over 12 years of age, a head sentence of around 10 years could be expected. The Judge stated sentences outside those parameters should be imposed when circumstances demand a lower or higher starting point.