Morton (a pseudonym) v The King - [2025] SASCA 29

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MORTON (A PSEUDONYM) v THE KING
[2025] SASCA 29
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice David)
20 March 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
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 - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
STATUTES - ACTS OF PARLIAMENT - VALIDITY OF LEGISLATION GENERALLY
CRIMINAL LAW - GENERAL MATTERS - OTHER GENERAL MATTERS - CONSTRUCTION OF CRIMINAL CODES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - EVIDENCE OF GOOD CHARACTER
This is an appeal against conviction and sentence.
The appellant was convicted of one count of sexual abuse of a child, C, by a trial by jury on 3 February 2022. The presiding Judge sentenced the applicant to 10 years imprisonment with a non-parole period of five years. This conviction was set aside on appeal and a new trial ordered. The applicant was again convicted in the second trial. The Judge presiding over the second trial sentenced the applicant to 12 years imprisonment with a non-parole period of six years, eight months, and one day.
The appellant was the stepfather of C. C was seven years and four months at the commencement of the period of the alleged sexual abuse, and nine years and two months when that period came to an end.
The particulars of the charge alleged that the appellant incited C to touch his penis on more than one occasion, engaged in unlawful sexual acts in the nature of penetration on more than one occasion; touched C’s genitalia on more than one occasion; caused C to perform an act of fellatio on more than one occasion; and attempted to kiss C on more than one occasion.
The appellant appeals against conviction on the appeal relied on the following grounds:
1. The Judge erred in ruling that he would give permission to the prosecution to adduce evidence of his bad character if he were to lead evidence of his good character;
2. A miscarriage of justice arose from the prosecutor inviting the jury to speculate that the victim had no reason to make up the allegations;
3. The verdict was unreasonable, having regard to inconsistencies in the evidence;
4. Section 50(4)(c) of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’) is unconstitutional on the ground that, by allowing for minority verdicts, it impermissibly interferes with the institutional integrity of the higher courts of this State in the exercise of their jurisdiction to hear and determine charges of sexual abuse of a child.
The appellant appeals against sentence on the ground that the Judge was precluded from imposing a higher sentence than that imposed on him at the conclusion of an earlier trial, on what has been described as the ‘ceiling principle’.
Held, by the Court, dismissing the appeal against conviction granting permission to appeal against sentence, dismissing the appeal against sentence:
1. The trial Judge did not err in ruling that he would give permission to the prosecution to adduce evidence of the appellants bad character if he were to lead evidence of the appellants good character. There is no statutory provision in this State limiting character evidence adduced in rebuttal to the same or similar traits to those in respect of which the good character evidence was adduced. The splitting of a person’s character in that way does not accord with common human experience. It would mislead a jury to hear evidence of good character traits but to keep them in ignorance of the bad character traits.
2. There was no miscarriage of justice. It was open to the jury to apply their understanding of human affairs to evidence of the victim’s young age and limited understanding of sexual matters to infer that it was more probable that the victim was able to describe the relevant features of sexual behaviour because the offending happened.
3. The verdict was not unreasonable. The evidence and the victims account necessarily proved the offence. The relationship was admitted and notwithstanding the absence of particularity as to each occasion on which the sexual offending was said to have occurred, the nature, range, and frequency of the sexual abuse described by C, leaves no room for doubt that at least on two of the occasions she described, the appellant sexually abused her.
4. On a proper construction of s 50 of the Act, the commission of two or more unlawful sexual acts evidence the relationship proscribed by s 50, being an unlawful sexual relationship. A jury need not be agreed on the evidential foundation that proves an element of the offence. Properly construed, s 50 requires unanimity on the maintenance of a relationship which has the attribute prescribed by s 50(2) of the Act. However, the subsection does not mandate that the jurors find the relationship to have that attribute on the same evidence. Indeed, it follows from an understanding of the subsequent provisions, and s 50(4)(c) in particular, that Parliament intended that that attribute was evidential only and not elemental.
5. A sentence imposed on an offender after a new trial is not constrained within a limit fixed by an earlier sentence imposed for the same offending which has been set aside. The earlier sentence is a relevant consideration, but not a ceiling.
Criminal Law Consolidation Act 1935 (SA) ss 50, 50(4)(c); Criminal Code 1989 (Qld) ss 229B, 229B(3)-(4); Crimes Act 1958 (Vic) s 569(1); Companies Act 1958 (Vic) s 43; Sentencing Act 2017 (SA) ss 3, 4, 9, 10, 11, 68, referred to.
Cranssen v The King (1936) 55 CLR 509; Elias v The Queen (2013) 248 CLR 483; M v The Queen (1994) 181 CLR 487; McL v The Queen (2000) 203 CLR 452; Melbourne v The Queen (1999) 198 CLR 1; R v Bonython-Wright (2013) 117 SASR 410; R v CAZ [2012] 1 Qd R 440; R v D (1997) 69 SASR 413; R v Hamilton (1993) 68 A Crim R 298; R v Trimboli (1979) 21 SASR 577; Rendic v The Queen (2021) 138 SASR 214; Xerri v The King (2024) 98 ALJR 461, applied.
Montgomery v Stewart (1967) 116 CLR 220, distinguished.
Chiro v The Queen (2017) 260 CLR 425; DWG v State of Western Australia [2023] WASCA 133; Harland-White v The Queen [1998] TASSC 1; House v King (1936) 55 CLR 499; R v Bedford (1986) 5 NSWLR 711; R v Gilmore (1979) 1 A Crim R 416; R v Little (2015) 123 SASR 414; R v [Morton (A Pseudonym)]; [Morton (A Pseudonym)] v The King [2022] SASCA 141; S v The Queen (1989) 168 CLR 266, discussed.
ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; Armstrong v R [2015] NSWCCA 273; Barbaro v The Queen (2014) 253 CLR 58; Byrne v The Queen (2021) 97 MVR 85; Collins v Djunaedi [2023] SASCA 97; Dimech v Tasmania (2016) 30 Tas R 230; Dinsdale v The Queen (2000) 202 CLR 321; DPP (Vic) v Dalgleish (a Pseudonym) (2017) 262 CLR 428; Gronow v Gronow (1979) 144 CLR 513; Hanna v Flinders University [2024] SASCA 127; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Makarian v The Queen (2005) 228 CLR 357; MK v The King (2023) 112 NSWLR 96; Nolan v The King [2024] NSWCCA 140 ; Parente v The Queen (2017) 96 NSWLR 633; R v ABS [2005] NSWCCA 255; R v BJW (2000) 112 A Crim R 1; R v Butler (a Pseudonym) (2022) 303 A Crim R 296 ; R v Gent (2005) 162 A Crim R 29; R v Kennedy [2000] NSWCCA 527; R v PGM (2008) 187 A Crim R 152; Turner v The Queen [2023] NTCCA 1; Veen v The Queen (No 2) (1988) 164 CLR 465; Warner v The King (2012) 142 SASR 275; Wilczynski v District Court of South Australia [2023] SASCA 82; Wong v The Queen (2001) 207 CLR 584, considered.

MORTON (A PSEUDONYM) v THE KING
[2025] SASCA 29
Court of Appeal – Criminal: Kourakis CJ, Doyle and David JJA

THE COURT: The appellant was convicted of a single offence of sexual abuse of a child, C, during the period between 17 August 2018 and 31 May 2020 following a trial by jury on 3 February 2022 (‘the first Trial’). The presiding Judge (‘the first Judge’) sentenced the appellant to 10 years imprisonment with a non-parole period of five years. The conviction was set aside on appeal and a new trial ordered. On that trial, the appellant was again convicted. The Judge presiding over the second trial (‘the Judge’) sentenced the appellant to 12 years imprisonment with a non-parole period of six years, eight months, and one day.
C was born on 25 March 2011. The appellant was C’s stepfather and, therefore, he was necessarily in a relationship with her. The particulars of the charge alleged that the appellant:
·incited C to touch his penis on more than one occasion;
·engaged in unlawful sexual acts in the nature of penetration on more than one occasion;
·touched C’s genitalia on more than one occasion;
·caused C to perform an act of fellatio on more than one occasion; and
·attempted to kiss C on more than one occasion.
The appellant appeals on the following grounds.
By ground 1, the appellant contends that the Judge was wrong to rule that he would give permission to the prosecution to adduce evidence of his bad character if he were to lead evidence of his good character. The good character evidence the appellant proposed to adduce comprised the absence of any convictions, his good work ethic, and his reputation for honesty. We leave to one side the question whether an absence of convictions, in contrast to a defendant’s testimonial assertion never to have committed an offence, is evidence of good character. The good character evidence adduced by the appellant could have no bearing on the credibility of his oath because he did not give evidence on oath. His exculpatory denials when questioned by police were in evidence but they were bare denials and did not proffer an alternative innocent narrative of events. The primary utility of the proposed good character evidence was therefore to attempt to raise a doubt that he committed the offence. The prosecution sought an indication that if the appellant adduced that good character evidence, it would be permitted to adduce evidence of the appellant’s drunkenness, aggression, and infidelity. On the Judge’s indication that he would permit the prosecution to adduce that evidence, the appellant chose not to adduce any evidence of his good character. The Judge was correct to so rule. The bad character traits, the subject of the foreshadowed prosecution evidence, placed the proposed good character evidence in a context which significantly undermined the inference that he was not a person who would engage in the charged conduct.
Ground 2 of the conviction appeal was abandoned.
Ground 3 complains of a miscarriage of justice occasioned by arguments put by the prosecutor in his closing address which reversed the onus of proof. Ground 3 mischaracterises the prosecutor’s submissions which went no further than to argue that some details of the appellant’s conduct given in C’s account were, on the one hand, inherently probable ways in which an adult male might engage in the alleged offending, but, on the other hand, were unlikely to have been known to, or within the imagination of, a child of C’s age. The submission did not invite the jury to reason to guilt by speculating that C did not have a motive to fabricate her account. The prosecutor’s submission called on the jury to apply its understanding of human affairs to conclude that fabrication, or imagination, of that detail by a child of C’s age was unlikely.
The fourth ground is that the verdict was unreasonable. The jury’s verdict shows that it accepted C’s evidence as credible and reliable. Given the frequency, and range, of sexual offending described by C, the, relatively minor, inconsistencies on which the appellant relied were not such as to demand a doubt on the occurrence of, at least, any two of the many incidents she described in the course of their familial relationship.
By ground 5, the appellant contends that s 50(4)(c) of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’) is unconstitutional on the ground that, by allowing for minority verdicts, it impermissibly interfered with the institutional integrity of the higher courts of this State in the exercise of their jurisdiction to hear and determine charges of sexual abuse of a child. We would dismiss that ground. It is not an element of an offence against s 50 of the Act that the jury unanimously, or by majority, find that the accused committed the same two or more sexual offences. Section 50 of the Act enacts an offence of maintaining a relationship characterised by unlawful sexual conduct, but that characteristic is established by proof of the commission of any two or more of the incidents of sexual offending given in evidence.
Finally, the appellant appeals against his sentence on the ground that the Judge was precluded from imposing a higher sentence than that imposed on him at the conclusion of the first Trial. The appellant relied on what has been described as the ‘ceiling principle’. We would dismiss the appeal against sentence. The sentence imposed on an offender after a new trial is not constrained within a limit fixed by an earlier sentence imposed for the same offending which has been set aside. The earlier sentence is a relevant consideration, but not a ceiling.
We explicate our reasons for so holding below.
The evidence
The appellant and C’s mother, KL, met in 2014 in a South Australian regional centre. KL testified that she saw herself, C, and the appellant as a ‘family unit’ after about six months. However, her relationship with the appellant was unstable and eventually came to an end in November 2019.
C was seven years and four months at the commencement of the period of alleged sexual abuse, and nine years and two months when that period came to an end. She was interviewed by the police soon thereafter. Relevantly to the detail of the account of sexual conduct given to police, KL testified that her discussions with C about sexual matters was very limited and was largely in the context of breeding animals.
During his relationship with KL, the appellant primarily worked evening shifts in a pork processing plant.
Over time, the appellant gradually spent more time at KL’s home in the regional centre, A, in which they had met. The family moved between A and several other regional centres during the course of the relationship. The first child of their relationship, KR, was born on 8 June 2017 in a township in the Adelaide Hills. Their second child, TR, was born in another regional town on 10 October 2018. The appellant stopped residing with the family from late 2019.
On Mother’s Day weekend in 2020, the appellant took all three children to stay with him for a short time.
C’s evidence was received by way of prerecorded interviews conducted by the police on 9 June 2020 (‘two interviews’) and 15 June 2021. In the first interview, C denied any offending by the appellant. C was asked, ‘Has anyone ever touched you in those parts’ and she responded, ‘No’.
In the second interview, C told the police that she had not told the truth in the first interview because she ‘hadn’t told [her] mum yet’. She explained that she had come back to say that her stepdad touched her. C gave an account of touching the appellant’s genitals and an account, in the simplistic terms one would expect from a child of her age, of penetrative sexual activity. C spoke of the appellant’s attempts to have her kiss him. C explained that the first occasion of any sexual conduct was in their home when KL was not there. She gave some detail about the way in which the appellant engaged in the sexual activity, which a child of her age would not be expected to relate unless she had seen conduct of that kind. C related that the offending first occurred when she resided in the township of A. The last occasion occurred in the residence into which the appellant had moved after the relationship with KL came to an end. C said that the offending occurred ‘almost every day last year and last time I went down’.
C told the police that she reported the behaviour to her mother, who had explained to her that the appellant ‘was actually raping’ her. C informed the police that the appellant had urged her not to tell her mother of his conduct but that she had also disclosed the offending to her cousin.
The disclosure to C’s cousin was treated as the initial complaint. Evidence of that complaint was given by C’s cousin by way of a video-recording of her interview by police on 25 June 2020. C’s cousin said that C had confided in her that ‘her old stepdad apparently … once she like woke with him licking one of her rude parts’ and ‘he touched her private thing in the private part’.
In the third interview, after C was shown the recording of her second interview, she elaborated on her account.
C also testified on the trial and was cross-examined. She was not able to say exactly how many times the sexual offending occurred in each of the many homes in which she had stayed with the appellant.
No genital abnormality was detected when C was examined at the Flinders Medical Centre on 19 June 2020.
As we observed in our introductory observations, the appellant denied sexual offending against C when interviewed by police but did not give evidence at trial.
Grounds of appeal
Ground 1 – ruling as to putting character in question
Towards the end of the prosecution case, counsel for the appellant informed the Judge that she proposed to lead evidence of the appellant’s good character. The evidence comprised the absence of any convictions, his good work record, and his reputation for honesty. The prosecutor responded that if that evidence was led, the prosecution would seek to adduce evidence from KL that the appellant:
·was bad-tempered;
·had engaged in extramarital affairs;
·gambled and engaged in drunken behaviour; and
·was possessive and controlling of KL and would push her around.
The Judge ruled that the prosecution would be given leave to adduce evidence of the appellant’s character.
If the evidence of the appellant’s reputation for honesty had been adduced, it could not have enhanced the credibility of his oath because he did not testify. It could only have marginally, if at all, affected the weight to be given to the appellant’s non-testimonial exculpatory statements which took the form of bare denials. Exculpatory statements received into evidence may engender a reasonable doubt by providing an innocent hypothesis or simply because an accused’s first reaction, when confronted with an allegation, was to deny it. However, the weight of that evidence is not much enhanced by good character evidence.
In R v Trimboli,[1] King CJ (with whom White and Mohr JJ agreed) explained the proper use of good character evidence in this way:[2]
I think that it is possible to lay down some propositions which might be of assistance to the judge at the new trial and to other trial judges.
1.It is desirable in all cases in which there is evidence as to the accused's good character that a direction be given as to the use to which that evidence should be put.
2.No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused's previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused's previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.
3.The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused's previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.
[1] (1979) 21 SASR 577 (‘Trimboli’).
[2] Ibid 578.

In Melbourne v The Queen,[3] McHugh J held that a trial judge is not obliged to give a good character direction in every case that such evidence is given, but has a discretion to do so which is to be exercised:[4]
… after evaluating its probative significance in relation to both (a) the accused's propensity to commit the crime charged; and (b) the accused's credibility.
The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly.
[3] (1999) 198 CLR 1.
[4] Ibid [30]-[31].
We would treat McHugh J’s identification of the use of good character evidence as bearing on an ‘accused’s propensity to commit the crime charged’ as a shorthand reference to the fuller explanation given by King CJ in Trimboli. Evidence of a reputation for honesty and diligence is not admitted on a trial of an offence of sexual, or other, violence because it shows an aversion to committing acts of violence. Rather, it is admitted because it may engender a doubt about an accused’s guilt because of the improbability that a right-thinking person would engage in any serious wrongdoing.
In R v Hamilton,[5] Hunt CJ at CL explained the common law position on the rebuttal of evidence of good character in this way:[6]
Raising character does, however, involve an enormous risk for an accused. Character is raised in the relevant sense only where the evidence is elicited or led by the accused with the intention of putting his or her character in issue: Redd [1923] 1 KB 104 at 106-107; (1922) 17 Cr App R 36 at 37-39; Winfield (1939) 27 Cr App R 139 at 141; Amoe v DPP (Nauru) (1991) 57 A Crim R 244 at 251. But, once character has been so raised by the accused, the Crown becomes entitled to elicit or to lead evidence of bad character (or bad disposition) to rebut the evidence upon which the accused relies: Woolcott Forbes (1944) 44 SR (NSW) 333 at 340. The evidence of bad disposition which becomes admissible for that purpose is not necessarily limited to the particular type of disposition raised by the accused; the whole of the character of the accused may be exposed, provided that it tends to disprove his or her assertion of good character: Stirland v DPP [1944] AC 315 at 326‑327. Nor is the evidence which becomes admissible to rebut the claim by the accused limited to his or her previous convictions; the Crown may seek to elicit or to lead evidence of specific events which demonstrate a bad disposition, notwithstanding that they have not been the subject of any charge or conviction: Stalder [1981] 2 NSWLR 9 at 19-20.
[5] (1993) 68 A Crim R 298.
[6] Ibid 299.
The bad character evidence foreshadowed by the prosecution in this case does rebut the evidence of good character which the appellant proposed to lead. It can be accepted that the evidence of bad character does not manifest offending of a similar kind to that with which the appellant is charged. However, the evidence of the appellant’s drunkenness, aggression, and infidelity shows that his character traits include a bad temper, volatility, and self-indulgence. It shows that his judgement and behaviour are sometimes flawed. It, therefore, detracts from the probative force of his reputation as an honest person with a good work ethic as a foundation for the inference that his character, viewed in the round, rendered it doubtful that he would engage in the charged offending.
There is no statutory provision in this State limiting character evidence adduced in rebuttal to the same or similar traits to those in respect of which the good character evidence was adduced. The splitting of a person’s character in that way does not accord with common human experience. It is precisely because most people have a number of diverse character traits that an accused may have some good character traits which, viewed in isolation, might raise a doubt as to guilt, but have other bad traits which would render the commission of the offence quite unsurprising. It would mislead a jury to hear evidence of the former but to keep them in ignorance of the latter.
The policy rationale for statutory provisions limiting the admissibility of bad character evidence to those character traits on which an accused has relied is to avoid collateral unfairness to an accused, particularly if the bad character traits do not manifest in similar offending. In jurisdictions which do not limit the nature of the bad character evidence which can be adduced in rebuttal, unfairness of that kind can be addressed by the exercise of the discretion to exclude unduly prejudicial evidence. The discretion must be exercised having regard to the nature and use of the good character evidence on which the accused proposes to rely and the permissible uses and adverse prejudicial effects of the rebuttal evidence.
In this case, the evidence of the appellant’s infidelity directly rebuts the evidence of his honesty. The other bad character traits throw some light on why the appellant may have offended despite his work ethic. However, the bad character evidence is not of a kind which would encourage prejudicial speculation that the appellant is the kind of person who would sexually abuse a child. There was therefore no reason to exercise the discretion to exclude the evidence.
Ground 3 – carriage by reason of prosecutor’s submissions reversing the onus of proof
In the course of submissions, the prosecutor referred to some seven aspects of C’s account which described a feature of sexual behaviour with which an adult might be familiar, but with which C, given her age and limited understanding of sexual matters, was unlikely to be familiar. The prosecutor then submitted in respect of those aspects of C’s account that it was unlikely that a child in her position would invent or imagine that detail. At the end of the prosecutor’s address, counsel for the appellant sought an order for a mistrial on the ground that the prosecutor had invited the jury to speculate that C had no reason to make up those allegations. The prosecutor’s submission to the jury was:
It contains detail which simply cannot have been invented, and it unfolds in a way which is entirely consistent with her having been sexually abused in the way she describes.
Counsel’s submission misconstrued the arguments made in the prosecutor’s closing address. The prosecutor was not calling on the jury to speculate in a manner which reversed the onus of proof. The prosecutor’s argument was that the jury should apply their understanding of human affairs. On that understanding and on the evidence of C’s young age and limited understanding of sexual matters, they could infer that it was more probable that C was able to describe those features of sexual behaviour because the offending had happened. The prosecutor argued that it was quite improbable that C either had learnt details of that kind from another source or that she had imagined them. Those submissions do not rely in any way on speculation about the absence of a motive to lie.
So much was made clear by the way in which the Judge framed the prosecutor’s argument in summing up to the jury. The Judge reminded the jury that the prosecutor had given them several examples of detail which ‘he suggested a child of [C’s] age simply could not have invented’.
Ground 4 – unreasonable verdict
The appellant relies primarily on inconsistencies between the evidence of C and KL on the number of times that C visited Naracoorte after he and KL separated. However, we accept the Director’s submission that the evidence does not establish a clear inconsistency. Submissions were made to the jury on that evidence. The topic was particularly suited to a jury assessment.
Reviewing the evidence more generally, the verdict shows that the jury accepted C as a credible witness. Notwithstanding the absence of particularity as to each occasion on which the sexual offending was said to have occurred, the nature, range, and frequency of the sexual abuse described by C, leaves no room for doubt that at least on two of the occasions she described, the appellant sexually abused her.
On our independent assessment of the evidence, on the acceptance of C’s evidence as credible and reliable, her account necessarily proved the offence. The relationship was admitted. The inconsistencies on which the appellant relied on appeal do not cause us doubt as to the jury’s assessment that C was credible. They certainly did not require the jury to have entertained a doubt about the accused’s guilt.[7]
[7] M v The Queen (1994) 181 CLR 487, 492.
Ground 5 – The validity of s 50(4)(c)
Ground 5 challenges the constitutional validity of s 50(4)(c) of the Act on the ground that it impermissibly interferes with the institutional integrity of the higher courts of this State in the exercise of their jurisdiction to conduct a trial by jury of a charge of maintaining an unlawful sexual relationship with a child contrary to that section. The appellant contends that the impugned provision has that effect because it provides that a jury need not unanimously agree (or agree by statutory majority) that an accused engaged in the same two unlawful sexual acts which characterise the relationship as an unlawful one. It is contended that the consequence of the invalidity of s 50(4)(c) of the Act is that the Judge erred by failing to direct the jury that they were required to be agreed on the same two unlawful sexual acts.
Section 50 provides:
50—Sexual abuse of a child
(1)An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3)For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(4)However—
(a)     the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b)     the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and
(c)     if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(5)The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
…
(7)A person may be charged on a single indictment with, and convicted of and punished for, both—
(a)     an offence of maintaining an unlawful sexual relationship with a child; and
(b)     1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.
(8)Except as provided by subsection (7)—
(a)     a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and
(b)     a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
…
(11)A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).
(12)In this section—
…
sexual offence means—
(a)     an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)     an attempt to commit, or assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a previous enactment;
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence;
unlawful sexual relationship offence means an offence against subsection (1).
…
It is necessary first to observe that the Parliament substantially amended an earlier iteration of s 50 in response to the decision of the High Court in Chiro v The Queen.[8] From the time of its first enactment, s 50(1) had ameliorated the relatively high level of particularity in the pleading of discrete sexual offences required by the decision of the High Court in S v The Queen.[9] In Chiro, the High Court held that, as first enacted, s 50 ‘was not a course of conduct offence properly so called, but one comprised of discrete underlying offences, … and therefore was an offence that required unanimity by the jury as to each of the underlying offences found to have been proved’. In that respect, the High Court approved an earlier decision of the Full Court of South Australia in R v Little.[10] The High Court in Chiro concluded that the actus reus of the first iteration of s 50 of the Act comprised discrete underlying acts of sexual offending and that it followed, therefore, that an accused could only be convicted and sentenced in respect of those acts of sexual exploitation on which the jury had, by their verdict, agreed.
[8] (2017) 260 CLR 425 (‘Chiro’).
[9] (1989) 168 CLR 266.
[10] (2015) 123 SASR 414.
The Criminal Justice Report of the National Royal Commission into Institutional Responses to Child Sexual Abuse considered the efficacy of s 50(1) as it was first enacted and the analogous provisions of the other States. It concluded that, notwithstanding the abrogation of the common law’s strict elements of particularity, the requirement of unanimity had frustrated the intended objective of facilitating the prosecution of persistent sexual abuse of children. The Royal Commission recommended that:[11]
… without undermining a fair trial for the accused, there must be offences in each jurisdiction that allow for prosecutions – and convictions where the evidence warrants convictions – that:
·do not require particularisation in a manner inconsistent with the ways in which complainants remember the child sexual abuse they suffered;
·allow for the effective charging and successful prosecution of repeated but largely indistinguishable occasions of child sexual abuse.
[11] Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017), 66 (Parts III-VI).
The Royal Commission further recommended that s 229B of the Criminal Code 1989 (Qld) be used as a template because the actus reus of that offence was the maintenance of an ‘unlawful sexual relationship with a child’ which was characterised by the adult engaging in one or more unlawful sexual acts, rather than an actus reus which comprised discrete sexual offences against a child.[12] The current version of s 50 of the Act implements that recommendation.
[12] Ibid.
The constitutionality of s 229B of the Criminal Code 1989 (Qld) was considered in R v CAZ.[13] The section provided:
Any adult who maintains an unlawful sexual relationship with a child under the prescribed age commits a crime.
[13] [2012] 1 Qd R 440 (‘CAZ’).
An ‘unlawful sexual relationship’ was defined as a relationship which involves more than one unlawful sexual act over any period. Sexual acts were defined by reference to conduct which if proved constituted the commission of an offence. Section 229B(3) required that for an adult to be convicted, the jury must be satisfied beyond reasonable doubt of the existence of an unlawful sexual relationship but, by subsection (4), provided:
·that the prosecution was not required to particularise those acts as would be necessary if the act were charged as separate offences;
·that the jury was not required to be satisfied of the particulars of any unlawful sexual act in that way; and
·finally, that the members of the jury need not be satisfied of the commission of the same unlawful sexual acts.
In CAZ, the validity of s 229B was challenged on two grounds. The first was that the abrogation of the requirement to give particulars removed a level of procedural fairness which was a necessary characteristic of the trial of a criminal charge by a court. The Court dismissed that ground. Justice Fraser explained that the rationale for the enactment of s 229B was an appreciation that child victims may not be able to recall sufficient detail of specific offences to provide the particulars required by the common law to charge a discrete offence. Nonetheless, his Honour acknowledged that any adaption of the traditional requirements of procedural fairness must not go so far as to preclude the ability to ensure a fair trial. Justice Fraser held that the provision did not go that far. His Honour emphasised that it was an element of the offence which must be proved beyond reasonable doubt that the relationship had sufficient continuity or habituality to justify an inference that the defendant maintained a sexual relationship with a child.
The second ground contended that the abrogation of the requirement that the jury, unanimously or by statutory majority, agree on the same unlawful sexual acts had the effect of requiring that the District Court to act ‘in a manner which is incompatible with Chapter 3 of the Commonwealth Constitution’. The Court also dismissed that ground.
As to the requirement of unanimity, Fraser JA commenced by observing that the principle stated in Kable[14] did not require the courts of the States to act in all respects in the same way as federal courts must act. In particular, his Honour emphasised that the express limitation in s 80 of the Constitution to offences against a law of the Commonwealth precluded an implication that the trials of offences against State laws were similarly governed. Justice Fraser continued:[15]
In any event, s 229B does not purport to dispense with trial by jury. Indeed, s 229B expressly contemplates trial by jury and requires jury unanimity upon the essential allegation that the defendant maintained a sexual relationship with a child that involved more than one unlawful sexual act. The appellant argued that a direction to the jury (in conformity with s 229B(3)) that all jurors must be satisfied beyond reasonable doubt of one or more unlawful sexual acts, but (in conformity with s 229B(4)(c)) not necessarily of the same acts, is inconsistent with the conventional directions that the prosecution must prove each element of the offence beyond reasonable doubt before it may convict and that the jury’s verdict in respect of each offence must be unanimous. There is no such conflict. The jurors could be unanimously satisfied that the defendant maintained an unlawful sexual relationship with the child involving more than one unlawful sexual act whilst at the same time disagreeing about which two or more of numerous alleged unlawful sexual acts were proved beyond reasonable doubt.
(Footnotes omitted)
[14] Kable v Director of Public Prosecutions (NSW) (1976) 189 CLR 51.
[15] CAZ [53].

We would emphasise the reasoning in the last sentence. It is premised on a construction of s 229B which identifies the conduct element of the offence that must be proved beyond reasonable doubt to the satisfaction of the jury, as an institution, to be the maintenance of a relationship in the course of which any two of a number of sexual offences was committed.
Justice Fraser acknowledged that on that construction there was a substantial diminution of the fact-finding role of the jury, and that the function of the presiding judge in fact-finding for the purposes of sentencing was augmented. His Honour concluded that, nonetheless, s 229B did not compromise the defining characteristics of courts nor their judicial function:[16]
Because jurors might differ about which unlawful sexual acts are proved and which are not, a verdict that the defendant is guilty of an offence against s 229B may leave unresolved some matters that bear significantly upon the defendant’s culpability, such as the frequency and seriousness of the unlawful sexual acts involved in the unlawful sexual relationship. In the result, trial judges may be required to make significant findings of fact in the sentencing process. In this respect s 229B, like some other provisions (such as those which create the offence of trafficking in drugs) reduces the role of the jury in the fact-finding process and to that extent erodes the safeguards traditionally associated with trial by jury of more specific offences, but that is not an unconventional feature of trial by jury. These results are necessary corollaries of the qualified dispensation from alleging particulars given by s 229B(4)(a) and are justifiable by the considerations I have already discussed.
In my opinion, s 229B does not work such a serious diminution upon the necessary extent of particularisation of the offence, the usual requirement for jury unanimity (or majority verdicts in certain cases), or other procedures designed to ensure a fair trial, as to justify the conclusion that the trial court no longer exhibits any of the defining characteristics which mark it apart from other decision-making bodies. I would hold that s 229B of the Code is not constitutionally invalid on any of the grounds argued by the appellant.
(Footnotes omitted)
[16] Ibid [54]-[55].
The appellant’s first contention is that, contrary to the decision in CAZ, the commission of two or more unlawful sexual acts, which by operation of s 50(2) of the Act characterise an unlawful sexual relationship, comprise the conduct element of the offence. We reject that contention. For the following reasons, on a proper construction of s 50 of the Act, the commission of acts of that kind evidence the relationship proscribed by s 50. A jury need not be agreed on the evidential foundation that proves an element of the offence.[17]
[17] Xerri v The King (2024) 278 CLR 276, 295 [60] (Gordon, Steward and Gleeson JJ); see discussion in Nolan v The King [2024] NSWCCA 140 [37].
First, it is to be noted that the only expressly articulated conduct element of the offence in s 50(1) of the Act is the maintenance of the proscribed relationship. We accept, of course, that the relationship which must not be maintained is one characterised by engaging in two or more of the unlawful sexual acts prescribed by s 50(2) and defined in s 50(12) of the Act. Nonetheless, there is necessarily more to the maintenance of the relationship than the random commission of two or more unlawful sexual acts. A relational context must also be proved. The ease of proof of that relational context in most cases is not a reason to reject a construction of s 50 which defines the offence as one of maintaining a relationship which meets the description prescribed by s 50(2) of the Act.
That construction is supported by s 50(3) of the Act, which requires the trier of fact to be satisfied beyond reasonable doubt that the evidence establishes the existence of the unlawful sexual relationship but does not explicitly stipulate that the jury must be satisfied of the commission of the same two particular sexual offences.
The immediately following provisions of subsection (4) reflect the very policy considerations referred to by the Royal Commission into Institutional Responses to Child Sexual Abuse. Sub-paragraph (a) relieves the prosecution of alleging the particulars of the unlawful sexual act that would be necessary if the acts were charged as a separate offence, because, as the Royal Commission explained, child victims are unlikely to be able to have the capacity to give an account from which such particulars might be distilled.[18]
[18] Xerri v The King (2024) 278 CLR 276, 292 [51]-[55] (Gordon, Steward and Gleeson JJ); MK v The King (2023) 112 NSWLR 96, 121 [96] (Beech-Jones CJ at CL, Ward P, Price, Wilson and Conergan JJ agreeing).
The amelioration of the requirement on the prosecution to provide particulars is then mirrored by sub-paragraph (b) which provides, importantly, that the trier of fact may be satisfied that an unlawful sexual act was committed even if the trier of fact cannot be satisfied of the particulars which would otherwise be necessary to identify the unlawful sexual act before a conviction could be returned. The abrogation of the requirements to plead, or find proved, the particularity of the sexual offences is closely connected to the abrogation of the requirement that the jury agree on the sexual offences which give the relationship its defining characteristic.
That connection can be illustrated by the following example. Consider a charge of an offence against s 50(1) of the Act particularised as the maintenance of an unlawful sexual relationship by a teacher over a period of five days when the child victim was on a school camp. The sexual offences alleged are no less than five offences of indecent assault committed in the same way in the same place at about the same time on each day. The child’s testimony is that the offending occurred every day at that time and place and that on some occasions more than one such offence was committed, but the child is otherwise unable to particularise the details. Nonetheless, all of the jurors may be satisfied beyond reasonable doubt that the child was indecently assaulted and that it happened on more than one occasion. The jury may be so satisfied even though it is problematic to identify two or more occasions on which they agree because of the absence of any meaningful particularity.
Sub-paragraph (c), which expressly provides that, if the trier of fact is a jury, its members are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship, reflects that the consequence of the abrogation of the requirement to particularise to which we have referred. There can be no unanimity, or majority agreement, on the commission of the same two, of the multiple sexual offences of which evidence is given, when the absence of particulars practically prevents the individual jurors identifying the two or more offences they are satisfied were committed. Sub-paragraph (c) is also a clear statutory direction that the commission of two sexual offences is not a defining element of the offence on which the jury must be agreed, but is instead a statement of the kind of conduct which evidences the proscribed relationship.
By contrast, s 50(5) of the Act requires a particularisation of the period of time over which the unlawful sexual relationship existed. That provision, too, emphasises the centrality of the existence of the relationship and not the individual sexual offences which characterise it. That provision and subsection (7) are calculated to ensure sufficient certainty to preserve protections against persecution afforded by the pleas of autrefois convict and autrefois acquit.
Section 50(11) of the Act constitutes the Judge as the final arbiter of the culpability of the conduct for the purposes of sentencing and gives a statutory foundation for the augmented fact-finding role of the judge explained by Fraser JA in CAZ.
Subsection (12) of the Act defines ‘sexual offence’ by reference to offences in Division 11 or certain other sections of the Act. ‘Unlawful sexual act’ means any act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence. It is those definitions which identify the conduct which evidences the proscribed relationship. So understood, that defining evidential characteristic need not be conduct which is sufficiently particularised as to constitute an offence against any of those provisions. It is merely conduct of a kind which if particularised would constitute an offence against any of those provisions.
It is useful to consider the question of construction posed here in a different context. In the formulation of an offence of providing a false report, whether the report be a prospectus or a financial report which a regulated entity must make, or a complaint of an offence or other misconduct, a policy choice is presented; should the publication of a report which is false in one or any number of respects be proscribed, or shall the making of each false statement in such a report be proscribed. In Montgomery v Stewart,[19] it was held that s 43 of the Companies Act 1958 (Vic) adopted the former approach and constituted an offence of issuing a prospectus which contained one or more false statements. Accordingly, a charge alleging a breach of the section by issuing a prospectus which included multiple false statements was not bad for duplicity. Further, it was held that a defendant was entitled to be acquitted if any one or more of the particularised statements were shown to be immaterial or were believed by the maker to be true. The latter consequence was a result of the particularisation required by the terms of s 43 of the Companies Act. That reasoning cannot be applied to s 50 of the Act because it abrogates the requirement to particularise the offending.
[19] (1967) 116 CLR 220 (‘Montgomery’).
Accordingly, it cannot be said that the commission of each alleged sexual offence, or engaging in conduct of that kind, is an element of the offence constituted by s 50 of the Act. Rather, s 50(2) of the Act does no more than prescribe a characteristic of an unlawful sexual relationship, the existence of which might be proved by any two incidents of sexual offending. Properly construed, s 50 requires unanimity on the maintenance of a relationship which has the attribute prescribed by s 50(2) of the Act. However, the subsection does not mandate that the jurors find the relationship to have that attribute on the same evidence. Indeed, it follows from an understanding of the subsequent provisions, and s 50(4)(c) in particular, that the Parliament intended that that attribute was evidential only and not elemental.
The description of the relationship by reference to conduct which, if particularised, would constitute an offence brings to the minds of criminal lawyers a presupposition that that attribute must also be a constituting element of the offence. However, the essential nature of the offence is more readily understood if a different drafting approach is postulated. ‘Unlawful sexual relationship’ might have been defined as a relationship between an adult and child in the course of which there is sexual activity on more than two occasions, giving the words ‘sexual activity’ their ordinary meaning instead of one which limited the term to conduct of a kind which would be an offence if particularised. So expressed, the provision is readily understood as constituting a single offence, similar, in form, to the provision considered in Montgomery. So construed, there is no constitutional difficulty caused by the express statutory command that the jury need not agree on the same two sexual acts.
The second premise on which the appellant’s contention rests is that it is an integral and necessary quality of adjudication by a jury that its members agree, in whatever number or by whatever majority, on the conduct which constitutes that element. The appellant’s submission continues that sub-paragraph (c) of subsection (4) is such a radical departure from that essential quality of jury decision-making that the institutional integrity of the State’s higher court is compromised. In that respect, it is to be observed that in a case in which very many unlawful sexual offences are alleged, it would be quite possible for a jury so directed to return a verdict of guilty even though only minority groupings of jurors are agreed on the same two or more unlawful sexual acts.
If the appellant’s construction of s 50 of the Act were accepted, we acknowledge that allowing a conviction based on minority findings as to an essential element would radically change the nature of the jury function. It does not follow, however, that it compromises the institutional integrity of the Courts. The States retain legislative power to prescribe forms of criminal procedure which provide procedural fairness, but which are substantially, even radically, different from trial by jury. Most obviously, the States have the legislative power and have exercised it to provide for trial by Judge alone even for the most serious of offences. However, we accept that a question does arise as to whether a procedure, which radically departs from the essential nature of the institution of the jury, that a representative body of the community agree on the verdict, but retains the appearance of that institution, compromises the institutional integrity of the courts so constituted. The centuries old institution of the jury epitomises the common law protections against persecution by executive. Arguably, unless the requirement for unanimous or majority agreement is maintained, the institution of trial by jury would become no more than a whited sepulchre.
Sentence appeal
In the event that his appeal against conviction were to fail, the appellant also sought an extension of time, and pursued an application for permission, to appeal against the sentence imposed by the primary judge. That sentence, which the Judge backdated to commence from the date upon which the jury’s verdict was delivered,[20] imposed a total term of imprisonment of 11 years, one month, and 12 days, with a non-parole period of six years, eight months, and one day.[21] Neither the extension of time sought by the appellant nor his application for permission to appeal was opposed by the respondent.
[20] Namely, 16 October 2023.
[21] Sentencing Remarks, R v TR (District Court of South Australia, DCCRM-21-257, Judge Durrant) 4.
The grounds upon which the appellant initially brought the appeal were:
·the sentence is manifestly excessive;
·the Judge erred in imposing a head sentence and non-parole period in excess of the sentence imposed prior to the appellant’s successful appeal; and
·the Judge erred in failing to have any or adequate regard to the appellant’s relative youth at the time of the offending, his prospects of rehabilitation and his positive work and family support.
Ultimately, the appellant pressed only the ground that, in imposing a sentence higher than that imposed upon his original conviction, the Judge erroneously departed from the ‘ceiling principle’.[22]
[22] See generally McL v The Queen (2000) 203 CLR 452, 459 [23] (Gleeson CJ, Gaudron and Callinan JJ).
For the reasons which follow, we are satisfied that the appellant ought to be granted permission to appeal against sentence, in light of the issue of principle and question of general importance regarding the nature and status of the ‘ceiling principle’.[23] We would, however, dismiss the appeal against sentence. In our view, the Judge’s imposition of a longer term of imprisonment than that formerly imposed by the first Judge evinces no error of principle. We would reject the appellant’s contention that, before the Judge could pass such a sentence, his Honour had to be satisfied that the sentence passed by the first Judge was manifestly inadequate. A sentence formerly imposed, but since quashed, is a relevant consideration in the fresh exercise of the sentencing discretion but cannot constrain it. Conditioning a proper exercise of the sentencing discretion, in cases of this kind, on satisfaction of the threshold for appellate review of a sentence is inconsistent with the statutory conferral of the sentencing power.
[23] See, Wilczynski v District Court of South Australia [2023] SASCA 82, [17] (Bleby and David JJA); Collins v Djunaedi [2023] SASCA 97 [32] (Doyle and Bleby JJA); Hanna v Flinders University [2024] SASCA 127, [13] (Livesey P and Bleby JA).
Factual and procedural background to the sentence appeal
The conduct the subject of the charge has been outlined above at [16]-[21].
The appellant was first tried by a jury before Auxiliary Judge Barrett in October 2021. That jury was unable to return a majority verdict and was discharged. A second trial by jury was held before the first Judge in February 2022. The jury in that trial returned a verdict of guilty on 3 February 2022. Sentencing submissions took place before the first Judge over 10 and 11 March 2022.
The first Judge imposed a sentence of 10 years with a non-parole period of five years on 7 April 2022. As at that date, the appellant was 28 years old. Her Honour’s remarks on sentencing referred to the seriousness and duration of the appellant’s offending, its deleterious effects on the complainant, and the support that the appellant still enjoyed from members of his family. On the question of the proper sentence to be imposed, her Honour remarked that:[24]
I am guided … by the sentencing standards in the decision of R v D [(1997) 69 SASR 413] and s 68 of the Sentencing Act 2017 … Offences such as this involving sexual conduct with young children where there are multiple offences committed over a period of time by a person in a position of trust and authority, attract a lengthy term of imprisonment. This term of imprisonment is subject to many considerations and the facts of each case must be assessed on their own merits.
In this case the complainant was aged between seven and nine, there were multiple sexual acts over a lengthy period. This offending involved a serious breach of trust in the relationship between you and the complainant, as well as your relationship with the complainant’s mother. You took advantage of the opportunity to offend against the complainant in circumstances where her mother trusted and relied upon you to assist in caring for the child whilst she was out working to support the family or working with a not for profit organisation.
Protection of the community is a paramount consideration in relation to sentences of this type. Both general and personal deterrence are also very important. …
I take into account your previous good character, although this does not reduce the seriousness of your offending. I consider that a term of imprisonment of 10 years is the appropriate penalty. In setting your non-parole period I take into account your limited prior history, that this is the first sentence you have served in custody and your strong family support. I set a non-parole period of five years.
[24] Sentencing Remarks, R v [Morton (A Pseudonym)] (District Court of South Australia, DCCRM-21-257, Judge Davison), 8.
The term of imprisonment imposed by the first Judge was backdated to commence from 3 February 2022 — being the date upon which the appellant’s bail had been revoked and he had been taken into custody.
The head sentence of imprisonment passed against the appellant fell below the approximate starting point of 12 years identified by Doyle CJ in R v D.[25]
[25] (1997) 69 SASR 413, 424 (Doyle CJ) (‘R v D’).
For reasons that are of no present relevance, the appellant’s conviction, following the trial conducted before the first Judge, was quashed by this Court on 23 December 2022.[26] The matter was remitted, on that date, for a retrial in the District Court.
[26] R v [Morton (A Pseudonym)]; [Morton (A Pseudonym)] v The King [2022] SASCA 141.

The jury in that retrial returned a unanimous verdict of guilty on 16 October 2023. The appellant’s bail was, once more, revoked and he was remanded in custody on that date for sentencing submissions. Sentencing submissions took place before the Judge on 27 November 2023.
During the course of those submissions, and after the appellant’s counsel had addressed the Court on what were said to be mitigative factors on sentence, the following exchange ensued, regarding the proper approach to calculating the term of imprisonment to be imposed:[27]
HIS HONOUR:    And then secondly, of course, the authority of R v D, Mr Walker might have something to say about that, but her Honour on the last occasion had regard to that authority. The jury were satisfied, as part of the offending, that they were in the relationship of stepfather and stepdaughter. There was no real contest about that, was there Mrs Shaw?
MRS SHAW:      No, your Honour.
HIS HONOUR:    And that I heard lots of evidence about the time that they spent together.
MRS SHAW:      Yes.
HIS HONOUR:    And that not only was it a relationship of stepdaughter and stepfather, but it was a trusted relationship. You wouldn’t try and disabuse me from considering it in that light?
MRS SHAW:      No, your Honour.
[27] Transcript of Proceedings, R v [Morton (A Pseudonym)] (District Court of South Australia, DCCRM-21-257, Judge Durrant), 8.
The Judge passed sentence on 12 December 2023. In his Honour’s remarks on sentence, the Judge referred, similarly, to the seriousness and persistence of the appellant’s offending, the effects of that offending on C’s physical and psychological health, the appellant’s subjective circumstances, and the applicable sentencing principles for crimes of the sort committed by the appellant. With respect to those principles, the Judge remarked that:[28]
The paramount consideration is the protection of the safety of the community. The purpose of the law is to protect children, the most vulnerable members of our society, from being preyed on by those who would subject them to sexual activity purely for their own gratification.
That sentencing consideration is heightened in circumstances where the perpetrator is in a position of trust or authority in relation to the child.
Your impact on C has been significant.
…
Personal and general deterrence also have a role to play in sentencing, you and others must be deterred from this type of offending against children.
You do not accept the verdict of the jury, I therefore can give you no credit for remorse or contrition. I have also accordingly not been provided with any information about any steps you have taken to address your sexual interest in children, or of any rehabilitation you have undertaken in that respect.
The devastating impact of this type of offending on victims is well recognised.
[28] Ibid 2-3.
The Judge then proceeded to consider the sentence previously imposed and to articulate his reasons for imposing a longer term of imprisonment than had been imposed by the first Judge:[29]
I have considered whether the circumstances of this case should cause me to depart from the 12 years so-called standard set out in R v D by the Court of Criminal Appeal. I have also in doing so had regard to the sentence imposed by Judge Davison following a prior trial and whether there is good reason to depart from her sentence of 10 years, and sentence you today in a different manner.
Respectfully, I am unable to discern specifically why her Honour departed from the starting point guidance of 12 years in R v D. In my assessment you are the type of offender the Court of Criminal Appeal had in mind in setting out its guidance in that case.
Her Honour did remark about your relative youth at the time of the offending, the family support you enjoy, and your lack of prior history. Particularly though, you were in a longstanding and established position of trust, you regularly cared for [the complainant] and were in a position to easily exploit the trusted position you held and were persistent in your offending.
While every sentence depends on its facts, in contradistinction to the defendant in R v D your abuse in this case continued over a longer period of time, you did not voluntarily cease offending, and as I have mentioned, I can give you no credit for remorse or contrition.
As for your personal circumstances, it is not uncommon for offenders of your type to have few or no antecedents, and otherwise be seen in the community as of good character, and to have otherwise lived productive lives.
Given that, your relative youth at the time of this offending, your stated good character, and work history, and the continuing family support you have, does not reduce the seriousness of this offending. Mindful of your previous sentence, and for all the reasons stated, I have decided to depart from the approach taken by her Honour Judge Davison. Having done so, and for all of the same reasons stated, I see no reason in your case to depart from the guidance as to starting point provided in R v D.
[29] Ibid 3-4.
At the outset, a number of matters relevant to the determination of the appellant’s challenge to the sentence imposed by the Judge may be observed in the passages extracted above. First, it is clear that the Judge approached the exercise of the sentencing discretion with both the standard articulated by the Court of Criminal Appeal in R v D and the sentence previously imposed in mind. In light of counsel’s concession that the appellant’s offending rendered an analogy with R v D apposite, that is unsurprising.
Secondly, the Judge’s departure from the sentence formerly passed was expressed to be on the basis that, considering both the circumstances of the case holistically and the guidance provided by the Court of Criminal Appeal, a longer term of imprisonment was, in his Honour’s opinion, warranted. The Judge expressly turned his mind to, but could not discern a reason to materially depart from, the guidance given in R v D. Indeed, some of the appellant’s subjective circumstances that appear to have informed the sentence imposed by the first Judge were considered by the Judge to be of little relevance in characterising the objective criminality of the offending.
The Judge was bound to exercise the statutory power to sentence, which was enlivened by the conviction recorded on a trial over which his Honour presided, in accordance with his Honour’s evaluation of the competing consideration. The Judge was correct to approach the sentencing discretion in that way. There are strong reasons to give relatively less weight to prior good character when sentencing for offences of this kind. Almost invariably, the very commission of offences of the kind with which the appellant stood charged is made possible by the trustworthy and honest reputation priorly enjoyed by the offender.[30] Accordingly, in ‘cases of this kind, little leniency can be expected for previous good character’.[31] The Judge was entitled to attach less weight to that consideration than the first Judge appears to have done.
[30] See R v Kennedy [2000] NSWCCA 527, [21] (Howie J, Simpson J agreeing); R v ABS [2005] NSWCCA 255, [25] (Buddin J, Brownie AJA and Latham J agreeing); R v Gent (2005) 162 A Crim R 29, 41-2 [51]-[57] (Johnson J, McClellan CJ at CL and Adams J agreeing); R v PGM (2008) 187 A Crim R 152, 162-3 [44] (Fullerton J, Spigelman CJ and Barr J agreeing).
[31] R v BJW (2000) 112 A Crim R 1, 9 [34] (Sheller JA, James and Dowd JJ agreeing).
The parties’ submissions on sentence
In oral argument on the appeal, counsel for the appellant — by reference, inter alia, to the decision of Buss P in DWG v Western Australia[32] — contended that the sentence imposed by the Judge evinced an erroneous departure from the ‘ceiling principle’ because the Judge could not impose a longer term of imprisonment than the first Judge did, unless his Honour were satisfied that the initial sentence was manifestly inadequate.[33] Counsel for the appellant submitted that, if any increase to the sentence passed by the first Judge were permissible, it must be on the basis that that sentence was so low as to bespeak an unidentified error of principle, given that the factual basis upon which the appellant stood to be sentenced was relevantly identical on each occasion.[34] In response to a question from the Bench as to whether a failure on the part of the Judge to pay sufficient regard to the sentence imposed by the First Judge would amount to an error of the kind enumerated in House v The King,[35] the appellant’s counsel responded that a failure to properly apply the ‘ceiling principle’ would at least result in a sentencing judge acting on a wrong principle.[36]
[32] [2023] WASCA 133.
[33] Transcript of Proceedings, [Morton (A Pseudonym)] v The King (Court of Appeal of South Australia, SCCRM-24-006582, Kourakis CJ, Doyle and David JJA) 91-2 (Mr Lodge).
[34] Ibid 90 (Mr Lodge).
[35] (1936) 55 CLR 499.
[36] Ibid 91 (Mr Lodge).
In the appellant’s oral submissions, counsel articulated the ceiling principle this way:[37]
But the point is that when they’re exercising that discretion afresh, the fact that a previous sentence has been imposed is a matter that it is really the guiding factor in the exercise of that discretion, it’s the significant factor. And where you have a sentence … that is not manifestly inadequate; that is to say, a sentence has been passed on this person what was within the permissible ranges of sentences available, then you should not depart from it unless there’s another reason to do so. A change of circumstances, for example.
[37] Ibid 93 (Mr Lodge).
The primacy afforded to the ‘ceiling principle’ by the appellant’s counsel, which has some support in the authorities,[38] is said to be justified by two considerations of public policy: first, that it is in the public interest that defects and deficiencies in criminal trials are exposed on appeal;[39] and secondly, and relatedly, that an offender who succeeds in exposing such defects and deficiencies ought not to be punished upon re-conviction by the imposition of a greater penalty than that challenged on appeal.[40] The first consideration can be accepted but appeals are primarily brought because of the prospect of an acquittal on the appeal, or following a retrial. It is not obvious to us that the safety net provided by the ‘ceiling principle’, in the form contended for here, materially facilitates the correction of miscarriages of justice. The second consideration is misleadingly framed. If a more severe penalty is imposed following the subsequent conviction, it cannot be by way of punishment for bringing the appeal, because the sentence must always be proportionate to the circumstances of the offence and the offender.[41]
[38] See, R v Gilmore (1979) 1 A Crim R 416, 419-20 (Street CJ, Lusher J agreeing); McL v The Queen (2000) 203 CLR 452, 459 [23] (Gleeson CJ, Gaudron and Callinan JJ), 496 [135] (Kirby J); Armstrong v R [2015] NSWCCA 273, [28] (Bathurst CJ, Price and Beech-Jones JJ agreeing).
[39] See R v Gilmore (1979) 1 A Crim R 416, 419-20 (Street CJ, Lusher J agreeing) (‘R v Gilmore’).
[40] See Turner v The Queen [2023] NTCCA 1, [20] (Grant CJ, Blokland and Brownhill JJ).
[41] See Veen v The Queen (No 2) (1988) 164 CLR 465, 472-3 (Mason CJ, Brennan, Dawson and Toohey JJ).
We also observe that the ‘ceiling principle’ as it has been expressed operates asymmetrically. It has not been suggested that a judge is similarly constrained from imposing a lesser sentence. It is difficult to justify the imposition of a judicial constraint on a statutory discretion which operates as a one-way street.
At the hearing of the appeal, the submissions of counsel for the Director on whether the sentence imposed by the Judge was erroneous were rather laconic. In essence, it was the Director’s position that the proper exercise of the Judge’s sentencing discretion — exercised following a retrial, and not occurring in the context of resentencing on appeal — called for the application of the standard articulated in R v D. That is, indeed, the course that was taken by the Judge. In this regard, counsel for the Director submitted:[42]
… the resentencing judge, so called, is not engaging any process review of the first sentence, that’s the first point. Secondly, that dovetails with the submission that it’s not strictly a matter for the resentencing judge to make some formal finding about manifest inadequacy. All he’s doing is saying, ‘there’s an applicable sentencing standard on paying due regard to the previous sentence of the other judge who also had regard to it but she departed from it and she hadn’t said why. That is enough for me to go back and consider my sentencing discretion afresh.’ So what his Honour, Judge Durrant, did in my submission is entirely what the authorities contemplate, he should have done.
[42] Transcript of Proceedings, [Morton (A Pseudonym)] v The King (Court of Appeal of South Australia, SCCRM-24-006582, Kourakis CJ, Doyle and David JJA) 104-5.
Laid out so, the real controversy between the parties revolves around the significance, and deference, to be accorded to the sentence originally imposed (and subsequently quashed) upon an offender in the position of the appellant by a sentencing judge in the position of the Judge.
The ‘ceiling principle’
It is, perhaps, convenient to commence with some fundamental principles underpinning the task of sentencing. Entrusted to each judge before whom an offender stands to be sentenced is a discretion, exercisable judicially and with a viewed toward attaining ‘individualised justice’[43] in the administration of the criminal law.[44] In Harland-White v The Queen,[45] Underwood J, with whose reasons Wright and Crawford JJ agreed, remarked, in this regard, that:[46]
The only requirement of the common law governing the exercise of that discretion is that all the relevant considerations must be taken into account and all irrelevant considerations must be excluded.
[43] Elias v The Queen (2013) 248 CLR 483, 495 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[44] See, eg, DPP (Vic) v Dalgleish (a Pseudonym) (2017) 262 CLR 428, 444-5 [49] (Kiefel CJ, Bell and Keane JJ); Parente v The Queen (2017) 96 NSWLR 633, 651-2 [98]-[100] (Macfarlan JA, Hoeben CJ at CL, Leeming JA, Johnson and RA Hulme JJ).
[45] [1998] TASSC 1.
[46] Ibid 3, quoted Dimech v Tasmania (2016) 30 Tas R 230, 244 [78] (Porter, Estcourt and Pearce JJ). See also Barbaro v The Queen (2014) 253 CLR 58, 77 [52] (Gageler J).
The power to sentence for a statutory offence is a statutory, and not a common law, power. The reference to the ‘requirement of the common law’ is an elliptical reference to the common law’s statutory construction of the otherwise unconstrained discretion which is conferred the penalty provision of a criminal offence. The relevant considerations include the need to ensure both that a sentence is proportionate to the offender’s criminality and that sentences imposed for particular crimes are internally consistent.[47] In this State, the judicial exercise of the sentencing discretion is, further, guided by the sentencing purposes, principles, and factors contained in ss 3, 4, 9, 10, and 11 of the Sentencing Act 2017 (SA). The interaction between these statutory principles and the body of implied common law of sentencing was explained by Lovell JA, with whose reasons Kelly P agreed, in the following terms:[48]
Traditionally, a court, when sentencing an offender, had regard to the protection of the safety of the community when determining a proportionate sentence. The protection of society was one factor, amongst many, that the court took into account. Sections 3, 4, 9, 10 and 11 of the Act impact on the sentencing task. The combination of ss 3, 4 and 9 directs a sentencing court to treat the protection of the safety of the community as the primary purpose (paramount consideration) of the sentence to be imposed. Other sentencing purposes, namely to punish, to hold to account, to denounce, to deter specifically and generally and to rehabilitate, remain relevant but are referred to as secondary purposes.
The sentencing discretion is broad. The sections mentioned do not direct the court as to how it must reach its final sentence; the Act is silent in this regard. The direction is that the sentence finally arrived at must achieve the protection of the safety of the community as its primary purpose. As has been observed, the troublesome nature of the sentencing discretion arises from the unavoidable difficulty in giving weight to the various factors to which the court must have regard when determining sentence. Factors bearing on the determination of a sentence frequently pull in different directions. The discretionary nature of the task means that the process does not lead to a single correct answer. The extent to which any factor bears upon the case is a matter of a value judgment. Administration of the criminal law involves individualised justice. It is the obligation of the court to balance the incommensurable factors and arrive at a just sentence which, in South Australia, ultimately reflects the primary purpose, namely the protection of the safety of the community.
[47] See, eg, Makarian v The Queen (2005) 228 CLR 357, 389-90 [83] (McHugh J).
[48] Rendic v The Queen (2021) 138 SASR 214, 215-16 [5]-[6].
It is a necessary consequence of the fact that the proper exercise of the sentencing discretion admits a range of permissible outcomes, each as correct as the others falling within the range, that an appellate court will not interfere with a sentence unless ‘the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority’.[49]
[49] Cranssen v The King (1936) 55 CLR 509, 520 (Dixon, Evatt and McTiernan JJ). See also House v The King (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ); Gronow v Gronow (1979) 144 CLR 513, 519-20 (Stephen J); Byrne v The Queen (2021) 97 MVR 85, 88-9 [1] (Bell P, Button J agreeing).
Where, then, an appellate court considers that a particular sentence under review is not simply more lenient or harsh than that which its members would impose, but rather is so lenient or harsh as to justify the conclusion that something must have gone awry in the exercise of the sentencing judge’s discretion,[50] then appellate intervention will ordinarily be warranted.[51] As much may be accepted as an orthodox aspect of the jurisdiction conferred upon a Court of Criminal Appeal hearing a challenge as to sentence.
[50] See, eg, Wong v The Queen (2001) 207 CLR 584, 605-6 [58] (Gaudron, Gummow and Hayne JJ); ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358, 366 [12] (Leeming JA, Garling and Cavanagh JJ agreeing).
[51] See Dinsdale v The Queen (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J); R v Butler (a Pseudonym) (2022) 303 A CrimR 296, [41] (David JA and Mazza AJA).
As a lodestar of appeals against sentence, the concept of manifest inadequacy — and its mirror, manifest excess — guides permissible interventions upon exercises of a broad and relatively unconstrained discretion. It is, however, a concept that is somewhat inapposite to the fresh exercise of the sentencing discretion, following the entry of a conviction of the same kind as that formerly quashed on appeal.
Of course, that is not to say that the sentence formerly imposed following the earlier quashed conviction is irrelevant to the exercise of the sentencing discretion, following conviction on retrial, but it is not the case that the former sentence must, or even should as a matter of course, delimit the acceptable boundaries of the subsequent sentence. To the extent that Street CJ might have suggested otherwise in R v Gilmore, that was expressly recanted by his Honour in R v Bedford.[52] In the latter case, the Chief Justice remarked that:[53]
It is perhaps appropriate to make some reference to exactly what was decided in R v Gilmore. There had in that case been a retrial ordered from a first trial in respect of which there was no suggestion that the sentences passed were other than entirely appropriate for the criminality involved. In the course of my judgment in that case I said (at 419):
‘It is a sound principle of sentencing that, on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial.’
Begg J dissented from the principle just stated; Lusher J expressed his agreement with it. It is significant to emphasise that the enunciation of the principle includes ‘should ordinarily not receive’. The word ‘ordinarily’ must be given full room to operate. It might perhaps have been preferable to have expressed this as a prima facie approach rather than elevating it to principle.
Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view.
(Emphasis added)
[52] (1986) 5 NSWLR 711.
[53] R v Bedford (1986) 5 NSWLR 711, 713-14 (Street CJ, Slattery CJ at CL and Brownie J agreeing).

On this view, the sentence formerly imposed is not a ceiling and there is no ceiling principle. Rather, the sentence formerly imposed is one of many considerations governing the proper exercise of the sentencing discretion.
In McL v The Queen, Gleeson CJ, Gaudron and Callinan JJ observed:[54]
… in the absence of countervailing considerations, the sentences imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial, otherwise an offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction. The weight to be given to that consideration depends, of course, upon the circumstances of the individual case.
(Emphasis added)
[54] (2000) 203 CLR 452, 459 [23].
Justices McHugh, Gummow and Hayne took the matter somewhat further, observing that:[55]
… Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare.
[55] Ibid 475-6 [72].
That case concerned the substitution of sentence, formerly imposed by the County Court of Victoria, by the Court of Appeal of Victoria, pursuant to s 569(1) of the Crimes Act 1958 (Vic). Respectfully, the assimilation of the ‘ceiling principle’ by Gleeson CJ, Gaudron and Callinan JJ as one of the relevant sentencing considerations on a resentencing, and not as a superimposed threshold before the discretion can be exercised differently, is more consistent with the nature of the statutory sentencing power. Such difference as there may be in practice between the two approaches can be seen as a matter of the weight which is attached to the ‘ceiling’ consideration.
In DWG v State of Western Australia,[56] after an extensive survey of the case law on the ‘ceiling principle’, Buss P distilled a number of propositions regarding the interaction of that principle with the fresh exercise of the sentencing discretion on a retrial:[57]
[56] [2023] WASCA 133 (‘DWG v State of Western Australia’).
[57] Ibid [60].
In my opinion, a number of propositions, including the following, may be distilled from the case law:
(a)A judge, who is sentencing an offender after a retrial following the offender’s successful appeal against conviction at the original trial, is not ‘resentencing’ the offender, but exercising an independent sentencing discretion in relation to the offences of which the offender has been convicted at the retrial.
(b)The so-called principle of restraint or ceiling principle describes a consideration which a judge, who is sentencing an offender after a retrial following the offender’s successful appeal against conviction at the original trial, should take into account.
(c)The proper application of the so-called principle of restraint or ceiling principle requires a consideration by the judge at the retrial of all the components of the original sentence including (in the case of multiple offences) the total effective sentence, the individual sentences, the orders for cumulacy or concurrency, any backdating of the total effective sentence and any parole eligibility order.
(d)Ordinarily, absent countervailing considerations, the sentences imposed by the judge at the original trial should be regarded as the upper limit of the sentences to be imposed following the retrial, so that the offender will not be seen to have been in a worse position as a consequence of the offender’s successful appeal against conviction at the original trial.
(e)However, the judge at the retrial may impose sentences that are higher than those imposed by the judge at the original trial for good reason; for example, if the sentences imposed by the judge following the original trial were manifestly inadequate or if the facts established at the time of sentencing following the retrial are materially different from those that were established at the time of sentencing following the original trial.
(f)An exercise of discretion by the judge at the retrial that increases the original sentence given to the offender should be rare … Where an exercise of discretion by the judge at the retrial increases the original sentence, good reason for the increase should be identified by the judge.
(g)Where an offender is convicted at the retrial of fewer offences or less serious offences than at the original trial, the so-called principle of restraint or ceiling principle applies … The manner in which the totality principle was applied at the original sentencing may be significant in the determination of the sentencing outcome following the retrial … The sentencing outcome following the retrial must be an appropriate reflection of the objective gravity of the overall offences, having regard to all relevant facts and circumstances and all relevant sentencing factors. The so-called principle of restraint or ceiling principle, as modified in the manner and to the extent explained and illustrated in those cases, does not mandate that the judge at the retrial make a proportionate reduction in the total effective sentence imposed by the judge at the original trial.
(Citations omitted)
The propositions (a), (b) and (c) are plainly correct. Accepting the correctness of those propositions the ‘ceiling principle’ is better named the ‘ceiling consideration’. However, it seems to us, with respect, that there is some tension between proposition (a) and propositions (d), (e) and (f), because acceptance of the former implies that the relative weight of the competing considerations, including the ‘ceiling consideration’, is a matter for the sentencing judge, subject only to appellate control for manifest excess or inadequacy. To apply thresholds like manifest inadequacy of the previous sentence is to constrain that individualised statutory discretion by judicial fiat. The explanation for the phenomenon that higher sentences are rarely to be imposed on sentencing following reconviction is that a proper weighing of relevant sentencing considerations will not yield significantly different results. A judge who might otherwise have been minded to impose a marginally higher sentence will generally refrain from tinkering with the sentence formerly imposed, having regard to the sentence formerly imposed and the perception of unfairness which it might engender. However, there will undoubtedly be cases in which there is a material, or even substantial, difference between the weighting given by the former and latter sentencing judge to the competing sentencing considerations. In such cases, the judge sentencing on the subsequent conviction is free, indeed, ‘obliged’ as Street CJ observed in R v Gilmore, to impose a higher sentence, after having weighed the ‘ceiling consideration’. That will be so even though both sentences properly fall within the range of sentences which are proportionate to the offending.
If good reason, in the sense that Buss P appears to use that term in para (e),[58] is a necessary condition for the imposition of a lengthier sentence, then that condition was satisfied in this case.
[58] DWG v State of Western Australia, [60].
As counsel for the Director correctly noted, in R v Bonython-Wright,[59] with the concurrences of Blue and Stanley JJ, Kourakis CJ stated that any departure from the sentencing standard articulated by Doyle CJ in R v D acknowledging, of course, the flexibility inherent in that standard — by a sentencing judge should be ‘supported by reference to circumstances which distinguish the case at bar from the generality of cases’[60] to which the Court of Criminal Appeal had referred. That was, with respect, not done by the first Judge. Indeed, the considerations that her Honour implicitly seems to have had regard to, namely, the appellant’s youth, family support, positive work history, and lack of any relevant prior convictions were, for the reasons expressed at [84] above, of limited weight in light of the offending conduct. They were necessarily so because, quite apart from their role in enabling offending of that kind to occur, they are ordinarily encountered in cases of this kind.[61]
[59] (2013) 117 SASR 410.
[60] R v Bonython-Wright (2013) 117 SASR 410, 429 [98].
[61] Warner v The King (2022) 142 SASR 275, 283 [20] (Kourakis CJ).
In those circumstances, the Judge, having correctly considered that the proper exercise of his Honour’s sentencing discretion called for the imposition of a sentence more approximate to that articulated in R v D, permissibly imposed a lengthier term of imprisonment upon the appellant. While there is much to be said for the view that, given the inherent characteristics of the sentencing discretion, any formerly imposed, and later quashed, sentence ought to be seen as a mere consideration in the imposition of a subsequent sentence following retrial, the first Judge’s unexplained departure from the relevant sentencing standard constituted a good reason for the Judge to exercise his discretion differently.
It follows that, while permission to appeal is granted with respect to sentence, the appeal against sentence must be dismissed.
Conclusion
The appeals against conviction and sentence are dismissed.