Morgan (a pseudonym) v The King - [2025] SASCA 31

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 (2021) 289 A Crim R 346; DES v The Queen [2020] SASCFC 32; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Hackett v The Queen [2021] SASCA 32; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Henry v The King (2022) 141 SASR 230; K, IC v The Queen [2020] SASCFC 34; Martain v The King [2023] SASCA 104; NBM v The Queen [2021] SASCA 105; R v Amos (A Pseudonym) [2021] SASCA 126; R v Lian [2023] SASCA 122; R v M, DV (2019) 133 SASR 470; R v McIntyre (2020) 138 SASR 17; R v MJJ (2013) 117 SASR 81; R v Morse (1979) 23 SASR 98; R v Pham (2015) 256 CLR 550; Turnbull (A Pseudonym) v The King [2023] SASCA 121; Warner v The King (2022) 142 SASR 275; Wong v The Queen (2001) 207 CLR 584, considered.

MORGAN (A PSEUDONYM) v THE KING
[2025] SASCA 31
Court of Appeal – Criminal: Livesey P, Lovell JA and Hall AJA

THE COURT: 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”),[1] and one count of aggravated assault (Count 2), contrary to s 20(3) of the Act. The conduct comprising Count 1 included the appellant sexually abusing his stepdaughter, Ms B, alone, and on other occasions, with Ms B’s biological mother, Ms T.
[1] Prior to the commencement of the Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023 (SA), after which it is now described as sexual abuse of a child.
For Count 1, the Judge[2] imposed a sentence with a starting point of 13 years’ imprisonment. For Count 2, the Judge imposed a sentence of three months’ imprisonment, which was to be served concurrently with the sentence imposed for Count 1. The final sentence imposed was a head sentence of 13 years’ imprisonment, with a fixed non-parole period of nine years. The sentence imposed for Count 2 is not subject to the appeal.
[2] The trial Judge subsequently became the sentencing Judge in the matter.
The appellant seeks permission to appeal on the basis the sentence imposed for Count 1 was manifestly excessive.
For the reasons that follow, we would grant permission to appeal but would dismiss the appeal.
Factual basis
At the time of the offending, the appellant was in a relationship with Ms T, having brought together each of their children into a blended family. Ms B was the eldest child and only female who lived with the appellant, Ms T and her younger brothers.
Between 2016 and 2021, the family moved frequently between towns, lived in at least nine different addresses and Ms B attended at least six different schools.
The Judge, in her reasons for verdict, found that the appellant’s offending had begun by May 2016. At that time, Ms B was 11 years of age. The offending ceased in April 2021 when Ms B was 16 years of age.
On multiple occasions, the appellant engaged in unlawful sexual acts with Ms B, spanning almost five years. The offending included kissing Ms B, performing cunnilingus on her, causing her to perform fellatio, touching her breasts and vagina, inserting his finger into her vagina, causing her to watch pornography, engaging in penile-vaginal sexual intercourse with her and in her presence, engaging in sexual acts with Ms T. The appellant also encouraged Ms B to participate in sexual activity with her mother, which included inciting or procuring Ms B to kiss Ms T, to perform cunnilingus on Ms T, and to insert her finger into Ms T’s vagina.
The offending that involved Ms T included the appellant abusing Ms B in Ms T’s presence, Ms T procuring and encouraging the appellant’s offending and, on occasions, Ms T joining the appellant and participating herself in the sexual abuse of Ms B. This included Ms T kissing Ms B, touching Ms B’s breasts and inserting her finger into Ms B’s anus.
The aggravated assault occurred in 2017 and involved the appellant pulling Ms B to the ground, placing his hands around her throat and squeezing, making it difficult for her to breathe. The offending was aggravated because Ms B regularly resided with the appellant.
The offending ended in April 2021 when Ms B moved out of the family home to live with her maternal aunt. Ms B subsequently made an initial complaint to her aunt, who then took Ms B to report the matter to police.
On 25 June 2021, the appellant and Ms T were arrested.
Personal circumstances of the respondent
At the time of sentence, the appellant was 36 years of age. He had no relevant prior convictions.
The appellant has three children and, prior to being remanded in custody, the eldest of those children lived with him, his partner, and his partner’s five-year-old daughter.
After completing his schooling in year 10, the appellant engaged in productive employment. In his early 20s, he commenced work as a truck driver and worked consistently in that role for around 20 years. He held employment in that field until his bail was revoked following the verdict of guilty in this matter. He has also contributed to the community through membership at the Country Fire Service.
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.
The Judge stated the appellant was to be sentenced based on the general nature of the sexual acts committed during the unlawful sexual relationship.
The maximum penalty for maintaining an unlawful sexual relationship with a child is life imprisonment. The Judge noted that in Edmonds (A Pseudonym) v The Queen,[5] the Court observed the standard in R v D is to be applied flexibly and provides guidance as to the appropriate penalty. The Judge considered a starting point of 13 years was appropriate for Count 1, appreciating it was in excess of the 10 years referred to in R v D, but appropriate to reflect the persistent nature of the appellant’s conduct.
[5] [2022] SASCA 11.
The maximum penalty for an aggravated assault is three years’ imprisonment. The Judge imposed a head sentence of three months’ imprisonment for Count 2 to be served concurrently with Count 1. This resulted in a head sentence of 13 years’ imprisonment.
The Judge had no material which assessed why the appellant offended against Ms B in the way that he did. His continued denial of the offending was a matter the Judge found relevant to his prospects of rehabilitation. The Judge fixed a non‑parole period of nine years’ imprisonment.
To account for the appellant’s time spent in custody and on home detention bail prior to the verdict, the Judge deducted five months from the head sentence and non-parole period. This resulted in a head sentence of 12 years and seven months’ imprisonment, with a fixed non-parole period of eight years and seven months, to begin on 5 July 2023.
Grounds of appeal
The appellant seeks permission to appeal on a single ground, namely that the sentence imposed was manifestly excessive.
Preliminary issues
The appellant placed reliance on the “standard” set in R v D where Doyle CJ drew a distinction, for sentencing purposes, between victims aged under 12 years and those aged over 12 years. The appellant submitted, based on a comparison with previous cases where the victim was over 12 years of age, that his sentence was the most severe imposed on a person sentenced for offending against a child over 12 years of age.
There are two issues that need to be resolved before considering the subsequent submissions of the parties.
First, as discussed earlier in these reasons, the Judge, in her reasons for verdict, found that the victim in this matter was 11 years of age when the offending commenced. When she came to sentence the appellant, it appears that she sentenced the appellant on the basis that the victim was 12 years of age when the offending began. That is, the Judge made a mistake in the appellant’s favour and sentenced him on an incorrect factual basis.
On appeal, counsel for the appellant, correctly in our view, conceded the error. That is, the appellant accepted that when the offending commenced, the victim was 11 years of age.
Secondly, the respondent submitted that the appellant’s reliance on the remarks of Doyle CJ in R v D as to the relevance of whether the victim was aged over or under 12 years, was misplaced. The respondent submitted that due to statutory amendments, the relevant age was now 14 years, not 12 years.
It is necessary to consider this preliminary issue in detail before dealing with the merits of the appeal.
Consideration of R v D and statutory amendments
In R v D, the appellant admitted to multiple acts of unlawful sexual intercourse with a child over the age of 12 years. The maximum penalty, had he been charged with one count of unlawful sexual intercourse,[6] was seven years imprisonment.[7] If the victim had been under 12 years of age, the maximum penalty was life imprisonment.[8] The appellant, however, was charged and pleaded guilty to one count of persistent sexual abuse of a child.[9] Persistent sexual abuse of a child consisted of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions. The definition of a sexual offence included an offence under s 49 of the Act.
[6]     Criminal Law Consolidation Act 1935 (SA) s 49.
[7]     Criminal Law Consolidation Act 1935 (SA) s 49(3).
[8]     Criminal Law Consolidation Act 1935 (SA) s 49(1).
[9]     Criminal Law Consolidation Act 1935 (SA) s 74.
It was against that background that Doyle CJ in R v D, in relation to his review of the sentencing standards for sexual offending against children, having earlier identified the significance of the maximum penalties, observed:[10]
I also consider, upon reflection, that there is a need to reflect more clearly the fact that the maximum sentence for unlawful sexual intercourse with children under 12 years of age is life imprisonment. In some of the cases referred to, no real distinction seems to be drawn, in terms of penalty, between such cases and cases of children over 12 years of age. That distinction is not to be achieved by reducing the penalty for offences in the latter category. To reduce sentences in such cases would not be to maintain an adequate standard of punishment. The distinction should be reflected by increasing the penalty in the case of offences involving children under 12 years of age, so that such cases attract a heavier penalty than cases involving children over 12 years of age.
(emphasis added)
[10] R v D (1997) 69 SASR 413, 423-424.
Clearly, Doyle CJ considered that whether the victim was above or below the age of 12 years was relevant to sentencing due to the difference in the maximum penalties for offences committed in breach of s 49 of the Act.
It is also important to note that the standard discussed in R v D was not a rigid one. As Doyle CJ remarked:[11]
In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.
(emphasis added)
[11] R v D (1997) 69 SASR 413, 424.
The relevance of the principles set out in R v D has also been the subject of many decisions of this Court. More recently in R v Lian, Kourakis CJ (Lovell and Doyle JJA agreeing) remarked:[12]
In Warner v The King, I explained the effect in law of the adoption of the sentencing standard in R v D as follows:
It is important to properly understand the legal significance of the adoption of a sentencing guideline by an intermediate Court of Appeal. Doyle CJ spoke of multiple sexual offences against children under 12 years of age attracting ‘a head sentence of 12 years’ on conviction following a plea of not guilty but stressed that he was not laying down a precise figure and that in the circumstances of a particular case the starting point might be higher or lower. Bleby J spoke of the penalty being ‘generally applicable’ to such offences. A sentencing guideline adopted by a court therefore differs markedly from a legislative mandate. Nor is a guideline a direction to sentencing judges to impose 12 years in all such cases unless there is a good reason to impose a different penalty. A guideline is an observation on the range in which sentences for offences of a particular kind will tend to coalesce if the competing sentencing objectives are properly balanced.
The importance of the guide given in R v D is that it indicates the range in which sentences for repeated sexual offending against the same victim could be expected to fall following the Court’s review of the relative weight which should be accorded to deterrence and the protection of children. It follows too that the guideline accommodates a range of factors personal to the offender which are generally encountered in cases of that kind. Nonetheless, as Doyle CJ observed, the guidelines leave the precise balancing of all the circumstances of a particular offence and offender to the sentencing Judge. However, the sentences imposed will tend to oscillate within a small range around the indicative sentence unless there is a circumstance peculiar to the case which outweighs significantly the generality of circumstances which characterise cases of this kind.
The standard in R v D was legislatively applied by s 68(1) of the Sentencing Act to all offences of that kind whether committed before or after the decision in that case. Section 68 now provides, more generally, that sexual offenders are to be sentenced in accordance with the standards applicable at the time of sentencing.
The sentencing standard in R v D applies directly to offending, including unlawful sexual intercourse, with a child committed by a person in a position of trust. Holding a position of trust is an aggravating circumstance. Sentences for sexual offending against children attended by an aggravating circumstance of that kind cannot be any more severe than is proportionate to the gravity of the aggravating circumstance. It follows that the establishment of a standard for sexual offences against children, when the offence is attended by that aggravating circumstance, necessarily effected an increase in the appropriate range for all sexual offending by adults against children.
(citations omitted; emphasis added)
[12] R v Lian [2023] SASCA 122 at [96]-[98].

It was common ground on appeal that the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) amended s 49 of the Act such that the maximum penalty of life imprisonment under s 49(1) applied to offenders who committed the offence against victims under the age of 14 years, as opposed to victims under the age of 12 years. The Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) amended s 49(3) so that the maximum penalty for the offence against a victim between the ages of 14 to 17 years increased from seven to 10 years imprisonment.[13] The amendments came into force in 2006.
[13] The Statutes Amendment (Child Sex Offences) Act 2022 (SA) has now amended the maximum penalty under s 49(3) from 10 to 15 years’ imprisonment.
Appellant’s submissions
The appellant submitted that while the 2005 amendments came into force in 2006, this Court has generally maintained the standard set in R v D. That is, sentences approved by this Court have not reflected the change in penalties contained in the amendments. The appellant submitted that the respondent’s submissions are not supported by legislation. That is, the legislative materials disclose no intention that the 2005 amendments to the Act would or should have the effect contended for by the respondent.
The appellant submitted that the respondent’s submissions were contrary to the logic of R v D itself. It was submitted that the respondent’s submissions, if accepted, would lead to less flexibility in the sentencing standard inconsistent with R v D and with the subsequent authorities.
Respondent’s submissions
Counsel for the respondent submitted that the effect of the 2005 amendments is that the standards outlined in R v D are now referable to children under or over the age of 14 years, not 12 years. The respondent submitted that such an approach did not overrule R v D or impose a new standard. Rather, to consistently and logically apply the principles articulated by Doyle CJ in R v D, a sentencing judge must have regard to the maximum penalty for the offences underpinning the unlawful sexual relationship. Such an approach is an orthodox application of an established sentencing principle.
The respondent submitted that, consistently with the remarks of Doyle CJ in R v D, the starting point for determining a sentence is flexible, not rigid.
Discussion
We reject the appellant’s submissions. It is a general sentencing principle that a sentencing court must have regard to the maximum penalty of an offence. That includes offences such as here where a sentencing judge must have regard to the maximum penalty for the offences underpinning the unlawful sexual relationship. Life imprisonment is now the penalty if the victim is under the age of 14 years.
R v D is a guideline judgment. It is clear from the remarks of Doyle CJ in R v D that he was influenced by the difference in maximum penalties.
In any event, this general sentencing principle has been reflected in recent decisions of this Court. In Brooker v The King, the Court, when referring to the principles enunciated in R v D, noted that this decision now “operates where children are aged 14 years or older, or under 14 years” following the 2005 amendments to s 49(1) of the Act.[14]
Merits of the appeal
[14] Brooker v The King [2024] SASCA 135 at [84]. See also Warner v The King (2022) 142 SASR 275 at [77] (Livesey P) and [121] (Doyle JA).
Appellant’s submissions
The appellant accepted the offending in this matter is objectively serious and warrants a substantial sentence. However, it was contended that the sentence is substantially higher compared to similar cases and represents the most severe sentence imposed on a person for a single count of maintaining an unlawful sexual relationship by a significant margin.
The appellant referred to a series of cases, submitting they demonstrate that sentences imposed on offenders for similar offending, in similar circumstances, attracted significantly lower sentences than his penalty.[15] The appellant submitted the cases demonstrate his sentence sits more within the range imposed upon people who offend against multiple children, which is a significant point of distinction between this offending and the offending outlined in the cases. Where someone is convicted of multiple offences, the principles relating to concurrency and totality have a tempering influence in relation to the final sentence.
[15] See Warner v The King (2022) 142 SASR 275; Henry v The King (2022) 141 SASR 230; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Day v The Queen (2021) 289 A Crim R 346; NBM v The Queen [2021] SASCA 105; BAF v The Queen [2021] SASCA 69; Davies v The Queen (No 2) [2021] SASCA 44; K, IC v The Queen [2020] SASCFC 34; DES v The Queen [2020] SASCFC 32; R v M, DV (2019) 133 SASR 470.
However, the appellant’s submissions were based on the now conceded error that he was sentenced on the basis that the victim was 12 years of age at the beginning of the offending, when the Judge’s finding at trial was that the victim was 11 years of age. The appellant, while maintaining his submission, accepted that the conceded error as to the age of the victim when the offending began weakened his submission. The appellant also conceded that if his argument about the relevance of the 2005 amendments was not accepted, his submission was weakened.
Respondent’s submissions
The respondent submitted that the appellant exploited Ms B’s vulnerability and breached his position of trust and authority to an extent that distinguishes this matter from the cases relied upon by the appellant. The vulnerability of Ms B was exacerbated by the frequent moving of the family from town to town, often requiring Ms B to move schools, which resulted in Ms B being unable to establish supportive relationships. Further, Ms B was the only female child in the family, and she had an unstable relationship with her biological father who resided interstate.
The appellant was one of Ms B’s primary caregivers, and she referred to him as “Dad”. An exploitation of a familial relationship is a serious factor in aggravation, and the abuse of power and trust was amplified by the appellant committing some of the offending in company with Ms B’s biological mother, the only other constant adult in Ms B’s life. Ms B had no one to turn to for help and no way to escape the abuse.
The offending was made more serious by Ms T’s involvement. This fact is not to punish the appellant for Ms T’s actions, but to acknowledge the appellant’s conduct was aggravated by his willingness to involve Ms T. The cases canvassed by the appellant did not involve offending committed by an offender in the company of another adult.
There was also emotional manipulation inherent in the appellant’s approach, asking Ms B to keep the offending he did without Ms T’s knowledge a secret. This increased the gravity of his conduct.
Further, the appellant breached his responsibilities over an extended period of time in order to satisfy his own prurient sexual desires. The regularity of the offending and the length of time in which it took place (occurring on almost a daily basis for a period of almost five years) exacerbated the seriousness, putting it at the upper end of the scale of objective seriousness.
The respondent accepted the type of sexual penetration involved is not necessarily determinative of the objective seriousness of the charge, and that each case must be considered having regard to its own facts and circumstances.[16] However, the respondent submitted notwithstanding those considerations, it was significant in this matter that the appellant’s offending involved a wide variety of sexual acts.
[16] Baxter (A Pseudonym) v The King [2024] SASCA 64 at [45]; Turnbull (A Pseudonym) v The King [2023] SASCA 121 at [29]; Warner v The King [2022] SASCA 142; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11.
The respondent submitted that, assuming the relevance of the 2005 amendments, half of the offending attracted the guideline of 12 years’ imprisonment, and the latter half attracted the guideline of 10 years’ imprisonment. However, what R v D and the cases following it make clear is that the guidelines are not to be applied with rigidity, and the appropriate starting point will depend on the objective seriousness of the offending and personal circumstances of the offender.
Permission to appeal
The principles governing an appeal against sentence where there is a complaint of manifest excess are well established. Permission to appeal will only be granted where the appellant has established an error of the kind established in House v The King.[17] As the Court observed in Pateras v The Queen:[18]
[17] (1936) 55 CLR 499.
[18] (2021) 139 SASR 549 at [15].
On appellate review of a sentencing decision the principles enunciated in House v The King are applicable. A challenge to a Sentencing Judge’s discretionary decision can only succeed if the judge:
1.     made an error of legal principle;
2.     made a material error of fact;
3.     took into account some irrelevant matter;
4.failed to take into account, or gave insufficient weight to [exceptional] some relevant matter; or
5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
(citations omitted)
In Hackett v The Queen, the Court outlined the following principles applicable to an appeal against sentence:[19]
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.
(citations omitted)
[19] Hackett v The Queen [2021] SASCA 32 at [8].
The appellant did not allege a specific error, and rather contended that an outcome error had occurred. As such, absent a specific error, the appellant must demonstrate that the sentence imposed was “unreasonable or plainly unjust”. That is, there was a failure to properly exercise the sentencing discretion resulting in a sentence outside the permissible range of sentences open to the Judge.[20]
[20] House v The King (1936) 55 CLR 499.
When determining whether a sentence in manifestly excessive, the Court must give consideration to all matters deemed relevant when determining a sentence. These include the maximum penalty for the relevant offending, where the objective seriousness of the offending sits in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[21] Ultimately, however, manifest excess is a conclusion and may not permit of “lengthy exposition”.[22]
[21] R v Morse (1979) 23 SASR 98, 99 (King CJ, White and Mohr JJ agreeing); Martain v The King [2023] SASCA 104 at [76].
[22] Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Discussion
The appellant relied upon the cases referred to earlier to demonstrate that the sentence imposed in this matter was manifestly excessive and generally comparable with cases involving multiple victims and/or victims under the age of 12 years.
Regard should be had to comparable cases unless there is a compelling reason not to do so, such as if the objective circumstances of the crime, or subjective circumstances of the offender, are so distinguishable as to render the decision irrelevant. Other cases may well establish a range of sentences which have been imposed. However, such cases do not establish that the sentences imposed mark the outer bounds of the permissible discretion. That is, a mere history of sentences that have been imposed for an offence, while identifying a range that has been imposed, does not necessarily establish that this is the correct range, or that its limits are correct.[23] Referring to sentences imposed in other cases is useful only if accompanied by an explanation of the unifying principles considered to be revealed by the disparate sentences.[24] Consistency in sentencing means consistency in the application of relevant legal principles, not numerical equivalence.[25]
[23] Hackett v The Queen [2021] SASCA 32 at [26].
[24] Wong v The Queen (2001) 207 CLR 584 at [59] (Gaudron, Gummow and Hayne JJ).
[25] R v Pham (2015) 256 CLR 550 at [28] (French CJ, Keane and Nettle JJ); Hackett v The Queen [2021] SASCA 32 at [26].
As such, while some guidance can be taken from the cases relied upon by the appellant, what the Court is required to consider is whether, having regard to the applicable sentencing principles and the facts and circumstances of the case, the sentence was outside the range available to the Judge.
In any event, as discussed, the appellant’s submissions are weakened by the now acknowledged error of the Judge and the earlier ruling about the relevance of the maximum penalty for the offence of unlawful sexual intercourse applying to children under 14 years of age.
As has been repeatedly emphasised by this Court, children, especially those in vulnerable situations, need to be protected. Sexual offending against children is inherently serious, and strong deterrent sentences are required in response to such offending to protect the community, to deter likeminded people from offending, and to punish offenders. Further, deterrent sentences are also required to reflect the significant and long lasting psychological, emotional, and sometimes physical harm caused to victims of such offending.[26]
[26] R v MJJ (2013) 117 SASR 81 at [84] (Kourakis CJ, Vanstone J agreeing); R v McIntyre (2020) 138 SASR 17 at [45]-[60] (Doyle J, Stanley and Hughes JJ agreeing); R v Amos(A Pseudonym) [2021] SASCA 126 at [36]; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11 at [52]; R v Lian [2023] SASCA 122 at [99] (Kourakis CJ).
Turning to the objective seriousness of this case, the appellant, as Ms B’s stepfather, breached her trust. He was in a position of authority, and exploited Ms B’s vulnerability of being the only female and eldest child residing with the family. The offending lasted a substantial number of years, ranging from when Ms B was 11 years of age and continued until she was 16 years of age. Further, the appellant encouraged Ms B’s mother to participate in the sexual abuse. Ms B had no parent to support nor protect her, and given the frequency the family moved between towns, Ms B was isolated. The offending included abhorrent sexual acts. As the Judge stated, the appellant’s behaviour was “serious and prolonged” and, as Ms B’s stepfather, his “emotional manipulation of her” makes his conduct more serious.
The Judge carefully outlined in her sentencing remarks what relevant sentencing factors she took into consideration, which included factors favourable to the appellant. The sentencing remarks demonstrate a clear description of these factors. The Judge had regard to relevant cases of this Court, and concluded, noting that R v D is a “flexible standard”, that the higher starting point was appropriate in the circumstances of this case “to reflect the persistence and the nature” of the appellant’s conduct.
Leaving aside the determinations made on the preliminary issues, we do not consider the sentence imposed on Count 1 was manifestly excessive. That is, even if the 2005 amendments had not come into force, we do not consider the sentence imposed to be manifestly excessive. The sentence imposed for Count 1 reflects the importance of general and personal deterrence, as well as the importance to protect children from predatory adult behaviour, especially those adults in positions of authority. It was not outside the range of sentences available to the Judge.
We would grant permission to appeal but would dismiss the appeal.
Order
Permission to appeal is granted but the appeal is dismissed.