R v Amos (a pseudonym) - [2021] SASCA 126

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v AMOS (A PSEUDONYM)
[2021] SASCA 126
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)
28 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
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 - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Application for permission to appeal against sentence by the Director of Public Prosecutions (SA).
The respondent pleaded guilty to seven counts of indecent assault pursuant to s 56(1) of the Criminal Law Consolidation Act 1935 (SA), one count of unlawful sexual intercourse pursuant to s 49(3) of the Criminal Law Consolidation Act 1935 (SA), one breach of s 66L(2) of the Child Sex Offenders Registration Act 2006 (SA) and one breach of s 44(1) of the Child Sex Offenders Registration Act 2006 (SA).
The offending took place over a period of approximately two years when the complainant was aged between 14 and 16 years.
A Judge of the District Court imposed a term of imprisonment of three years, nine months and two weeks imprisonment with a non-parole period of three years and one week. The sentence commenced from 8 November 2018, the date the respondent was taken into custody.
The appellant appealed on the basis that the sentence was manifestly inadequate.
Held, by the Court, granting permission to appeal and allowing the appeal:
1. The sentence imposed is manifestly inadequate.
2. It is necessary for this Court to intervene to maintain the sentencing standard for offences of this kind and to maintain public confidence in the administration of justice.
3. The sentence imposed in the District Court is set aside.
4. On resentence, the respondent is sentenced to eight years imprisonment with a non-parole period of six years and five months with the sentence to commence from 8 November 2018, the date the respondent was first taken into custody.
Child Sex Offenders Registration Act 2006 (SA) s 44(1), s 66L(2); Criminal Law Consolidation Act 1935 (SA) s 49(3), s 56(1); Sentencing Act 2017 (SA) s 11(1)(f), s 53(1)(a), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; R v Buttigieg [2020] SASCFC 38; R v D (1997) 69 SASR 413; R v Harkin [2011] SASCFC 24; R v MJJ, R v CJN (2013) 117 SASR 81; R v Nemer (2003) 87 SASR 168; R v Peet [2018] SASCFC 91; Queen v Smith (1987) 44 SASR 587; R v RGC [2020] SASCFC 102; Veen v The Queen (No 2) (1988) 164 CLR 465, considered.

R v AMOS (A PSEUDONYM)
[2021] SASCA 126
Court of Appeal: Livesey P, Lovell and David JJA
THE COURT:

On 10 December 2020, the respondent pleaded guilty to sexually abusing the complainant, who was aged between 14 and 16 years, over a period of approximately two years. The respondent pleaded guilty to seven counts of indecent assault and one count of unlawful sexual intercourse in addition to acknowledging a number of uncharged acts against the complainant. The respondent also pleaded guilty to two breaches of the Child Sex Offenders Registration Act 2006 (SA) (“the Act”). He was a registered sex offender under the Act because of his previous convictions for the sexual abuse of three teenage boys in 2001.
The Sentencing Judge sentenced the respondent to three years, nine months and two weeks imprisonment with a non-parole period fixed at three years and one week for the offending, including the two breaches of the Act. The Director of Public Prosecutions (“DPP”) has appealed on the basis that the sentence imposed is manifestly inadequate. For the reasons that follow, we would give permission to appeal, allow the appeal and resentence the respondent.
Background
The respondent was originally charged with six counts of indecent assault (four counts were aggravated) contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA) and three counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). After discussions with the DPP, the respondent pleaded guilty to seven counts of indecent assault and one count of unlawful sexual intercourse. One count of unlawful sexual intercourse was withdrawn and a plea to indecent assault was accepted by the DPP in relation to the other count of unlawful sexual intercourse. The respondent was also charged with breaches of the Act (two counts).
At the commencement of the appeal, counsel for the DPP, Ms Dunlop, drew the Court’s attention to two matters. First, she submitted that the respondent had not been sentenced on a correct factual basis. The Sentencing Judge, she conceded, had not made an error — he simply had not been apprised of an agreement the parties had reached as to the appropriate factual basis for sentencing. Secondly, the Sentencing Judge erred in applying a reduction of 5% to the sentence for the respondent’s guilty pleas for all offences when, in fact, his pleas to the breaches of the Act rendered the respondent eligible for a reduction of up to 30%. Ms Dunlop, correctly in our view, did not seek to rely on this process error to suggest a basis for this Court to resentence the respondent. The DPP, she submitted, relied solely upon the submission that the sentence imposed was manifestly inadequate. Ms Dunlop submitted that both errors could be rectified if the Court was persuaded to resentence the respondent.
Factual basis for sentencing
The respondent is a cousin of the complainant’s deceased father. The complainant and respondent had contact throughout the complainant’s life, however this increased following the death of the complainant’s father. The complainant and his family referred to the respondent as “Uncle”.
The respondent spent time at the complainant’s home. He provided assistance to the complainant’s mother by doing general maintenance around the complainant’s home. While at the complainant’s home the respondent gave him (and his siblings) massages. He touched the complainant on the upper bottom, put his hand up the complainant’s shirt and tried to remove the complainant’s top. The complainant said that the respondent gave him “weird hugs” and rubbed his face into the complainant’s neck. When he was about 14 years of age, the complainant believed that the massages and suggestive comments made by the respondent indicated a sexual interest in him. Clearly, the respondent was “grooming” the complainant.
The charged sexual contact occurred when the complainant was aged between 14 and 16 years old.[1] The Sentencing Judge outlined the offending as follows:
[1] Although the Sentencing Judge said 15–16 in his remarks, nothing turns on the distinction.
Count 1: between 31 July 2016 and 1 October 2016, the offender masturbated the complainant in a partially built house near the home of the complainant.
Count 2: between 31 August 2016 and 1 November 2016, the offender masturbated the complainant at the latter home by the side of the house.
Count 3: between 31 August 2016 and 1 July 2017, the offender masturbated the complainant near the side of the house and the complainant ejaculated on the offender’s hand and on the ground.
Count 4: between 31 August 2016 and 1 January 2017, the offender masturbated the complainant at the complainant’s home in the garage and the complainant ejaculated into a cloth or beanie held by the offender.
Count 5: between 31 March 2018 and 1 May 2018, the offender picked up the complainant from his home and drove him to the offender’s home. There the offender inserted his finger into the complainant’s anus up to the second knuckle.
The complainant then made a limited disclosure of the offending to his mother. The family told the respondent that he was no longer welcome at their house and that he was not to have any contact with the complainant. Despite this intervention the respondent resumed contact with the complainant.
Count 6: between 30 September 2018 and 10 October 2018, the offender picked up the complainant after work and went to the offender’s house. The offender masturbated the complainant until he ejaculated on a towel. The offender told the complainant “Don’t say my name”, and “Do you want to see me in gaol?”.
Count 7: at the offender’s home the offender put a condom on the complainant’s erect penis and masturbated him until he ejaculated in the condom.
Count 8: withdrawn.
Count 9: on 3 November 2018, the complainant rode his bike to the offender’s house where they watched pornography on the offender’s laptop and the offender masturbated the complainant and then licked his penis twice.
Uncharged acts
In uncharged acts between October 2017 and April 2018, the complainant masturbated in the presence of the respondent about four times. In February 2018, the respondent was present at the home of the complainant. They went into the shed and the complainant masturbated and then ejaculated into the hand of the respondent. In March 2018, the complainant watched pornography in the respondent’s vehicle and masturbated while the respondent watched. On 28 October 2018, the respondent picked up the complainant from his home and masturbated the complainant on the drive back to the respondent’s home. On 30 October 2018, the respondent picked up the complainant from his work. He drove the complainant to a nearby street and masturbated him. The final uncharged act was when the respondent masturbated the complainant until he ejaculated.
In relation to the breaches of the Act, the respondent failed to inform a parent of the complainant that he was a registered sex offender (due to his previous convictions) and the second count related to a failure to report to the police as required.
The complainant’s mother and stepfather reported the offending to the police on 8 November 2018, and the respondent was arrested on the same day. He exercised his right not to answer questions when interviewed by police.
The Sentencing Judge’s remarks
Before turning to the actual offending, the Sentencing Judge considered the respondent’s initial behaviour towards the complainant. He noted:
After the death of the complainant’s father in May 2014 the offender assisted the complainant’s mother with maintaining her yard and general maintenance. When the complainant turned 14 the offender would see him more often. The complainant asserts he would give him weird hugs and rub his face into the complainant’s neck. The complainant says that from about mid-2016 he started getting erections in the presence of the offender and the offender would show signs by massages and suggestive comments that he was sexually interested in the complainant.
Clearly, the respondent “groomed” the complainant. The behaviour of the respondent was predatory.
Uncharged acts were led in addition to the charged acts. While noting that the uncharged acts were relevant, the Sentencing Judge made it clear that he was sentencing the respondent only for the charged acts that were admitted.
The Sentencing Judge took into account the respondent’s age, medical condition, and diagnosis of major depressive disorder. By his plea, the respondent acknowledged his guilt, although that plea was entered shortly before the trial was due to commence and after the complainant had prepared to give evidence. The respondent wrote a letter of apology. The letter did not demonstrate full insight into his role in the offending. Given his previous convictions, the prospects of rehabilitation are guarded.
The Sentencing Judge noted that in the District Court of South Australia on 18 September 2001 the respondent was convicted of five counts of procuring an act of gross indecency; two counts of gross indecency; four counts of supplying a controlled substance, namely cannabis; and one count of failing to comply with a bail agreement. He offended against three young teenage boys. The respondent received a sentence of four years imprisonment with a non-parole period of two years and six months. The behaviour in those matters was also predatory.
The Sentencing Judge had before him two medical reports relating to the respondent’s previous offending. He observed:
I have read the final reports of Dr Jules Begg dated 5 September 2001. He opines that the offender’s behaviour represented then a failure to appreciate the impact of his actions upon other people, as well as that, the offender derived benefit from the way in which his victims enjoy his company. In their immaturity they would have looked to the offender as an older and wiser man, prepared to talk and experiment with them about topics confusing to pre-adolescents such as sexuality and drug use.
The offender does not have the psychological capacity to understand or make use of the explanation just given and is likely to continue to look towards other people to gratify his need for praise and attention.
Kate Dowling, a registered psychologist, provided a report. She says the offender purports to be of Aboriginal descent and identifies with his Aboriginal heritage. He became lonely and enjoyed the boy’s company. He denied any sexual offending intentions.
The Sentencing Judge also had before him a report of Dr Hooper, a psychiatrist the respondent had consulted in 2015. Dr Hooper had diagnosed the respondent as suffering a major depressive episode in 2015. He also noted that the respondent had a personality style which included “avoidance traits and some narcissistic defences”.
The Victim Impact Statement of the complainant was also before the Sentencing Judge. The complainant described being very angry and upset that the respondent had preyed on him during a vulnerable time in his life following his father’s death. The complainant described how the offending conduct caused his self-esteem to be “really” low and that he felt worthless. He now feels confused about his sexuality. The offending impacted both his schoolwork and now, his working life.
The Sentencing Judge acknowledged that the maximum penalty for indecent assault is eight years imprisonment, and for unlawful sexual intercourse, 10 years imprisonment. In relation to the charge of a failure of a registrable offender to inform a responsible adult in breach of s 66L(2) of the Act, the maximum penalty is imprisonment for five years or a fine of up to $25,000. The maximum penalty for failing to comply with reporting obligations in breach of s 44(1) of the Act is imprisonment for two years or a fine of $10,000.
As noted by the Sentencing Judge, due to the operation of s 53(1)(a) of the Sentencing Act 2017 (SA), the respondent is a serious repeat offender. This section mandates that a non-parole period of at least four-fifths the length of the sentence be imposed.
Principles on a prosecution appeal
On appellate review of a sentencing decision, the principles enunciated in House v The King are applicable.[2] The principles involved in an appeal by the DPP were discussed in R v Buttigieg.[3] It is well established that leave should only be granted with respect to Crown appeals against sentence in cases that are “rare and exceptional”. The “rare and exceptional” test should be rigorously applied. The DPP will be granted permission to appeal if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would “shock the public conscience”.[4] To justify appellate intervention in a sentence said to be manifestly inadequate, strong reasons of public policy must exist. The DPP must persuade the Court that such strong reasons exist that demand permission to appeal be granted despite the public interest in not twice vexing the respondent.
[2] (1936) 55 CLR 499.
[3] [2020] SASCFC 38 at [38]–[42].
[4] R v Nemer (2003) 87 SASR 168 at [24]; R v Harkin [2011] SASCFC 24 at [19].
The DPP does not rely on any suggested process error in the sentencing process. The sole ground of appeal is that the sentence imposed is manifestly inadequate. Manifest inadequacy is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge.[5] In determining whether a sentence is manifestly inadequate, an appellate court must essentially repeat the task undertaken by the sentencing judge and in doing so, determine whether the sentence imposed fell outside the permissible range such that it must be plainly inadequate.[6] A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[7]
[5]     Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J).
[6]     R v Peet [2018] SASCFC 91 at [6].
[7]     Hili v The Queen (2010) 242 CLR 520 at [59].
Appellant’s submissions
Ms Dunlop, counsel for the DPP, submitted that the sentence imposed was so far below the appropriate standard for sexual offences of this nature against children that it failed to maintain an adequate standard of punishment. She further submitted that to allow the sentence to stand would undermine public confidence in the administration of justice.
Ms Dunlop conceded that, on the facts of this matter, the standard articulated in R v D did not strictly apply.[8] Whilst making that concession, namely that this was not a case involving repeated offences of unlawful sexual intercourse, she submitted that the other circumstances recognised in R v D as significant in sentencing for a course of conduct of sexual offences against a child remained relevant.
[8] (1997) 69 SASR 413.
In particular, Ms Dunlop emphasised the following points:
1.the age of the complainant and the disparity in age between the complainant and the respondent;
2.the familial relationship that existed between the respondent and the complainant, and the relationship between the respondent and the complainant’s family;
3.the grooming and predatory behaviour of the respondent;
4.that the offending only came to an end due to the complainant’s disclosure to his mother, and her bringing the matter to the attention of the police;
5.the enduring psychological harm suffered by the complainant;
6.the harm suffered by the community;
7.his reporting offences denied the complainant’s family an opportunity to prevent the contact offending that followed, and those supervising him from potentially becoming aware of his contact with the complainant;
8.the extended time period over which the offending behaviour persisted;
9.that the respondent had prior convictions for sexual offending against boys: [9]
10.the respondent’s lack of insight as to the cause and effect of his behaviour;
11.that risk of reoffending cannot be considered unlikely; and
12.the need for specific and general deterrence to be reflected in the sentence imposed.
[9] See Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
Ms Dunlop submitted that for sexual offences committed against children, paramount consideration should be given to the need for deterrence and punishment. In cases involving this kind of offending, where there has been a course of conduct by a person in a position of trust and authority, the starting point should be a substantial head sentence of imprisonment. All sexual offending against children calls for a strong sentencing response in order to ensure that it adequately achieves the sentencing objectives of deterrence, punishment and protection of the community.
Respondent’s submissions

Mr Gaite, counsel for the respondent, relied on Dr Hooper’s report which established that, just prior to the offending commencing, the respondent was suffering a major depressive episode.
Mr Gaite further pointed to the respondent’s current medical condition. In 2019, whilst in custody awaiting trial, the respondent was diagnosed with rectal cancer. His condition at that time was managed with radiation therapy as the respondent declined surgery and chemotherapy. In May 2021, the respondent changed his mind and underwent surgery. However, the cancerous tumour was perforated, and the surgeon was unable to remove all of the tumour. The surgeon reported that the respondent has “Stage 2” cancer. This means that the cancer has not spread to other parts of his body but he has a 40%–50% chance of tumour recurrence within five years which may impact his long-term survival.
The respondent has now agreed to accept chemotherapy treatment. If sentenced to further time in prison, the chemotherapy treatment will occur while he is in custody. While Mr Gaite accepted that the respondent could be treated appropriately within the prison system, it is clear, he submitted, that undergoing chemotherapy in custody is a matter highly relevant to the respondent’s personal circumstances.
Mr Gaite submitted the Sentencing Judge balanced all the relevant considerations and arrived at a merciful sentence. It was not a case, he submitted, that could be said to fall within the “rare and exceptional” category calling for interference by this Court.
Disposition of the appeal
The DPP makes no criticism of the Sentencing Judge’s summary of the facts other than the issue previously discussed. It is evident that the Sentencing Judge appreciated the impact of the respondent’s conduct on the complainant. The Sentencing Judge described, in some detail, the conduct of the respondent which was predatory.
Section 11(1)(f) of the Sentencing Act 2017 (SA) states:
(1)In determining a sentence for an offence, a court must take into account such of the factors as are known to the court that relate to the following matters as may be relevant:
(f) the defendant’s age, and physical and mental condition (including any cognitive impairment) …
In Queen v Smith, King CJ observed that a prisoner’s medical conditions may be a factor tending to mitigate punishment when it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or when there is a serious risk that imprisonment may gravely affect the offender’s health.[10]
[10] (1987) 44 SASR 587 at 589.
A sentencing judge should weigh the ill health of the person against other applicable sentencing considerations such as the seriousness of offence. What weight is to be given to the existence of a medical condition is dependent on the circumstances of the particular matter. A key consideration is whether the medical condition can be satisfactorily accommodated for in a prison environment. Another central consideration is whether the prison environment could exacerbate the condition in a manner that would not occur otherwise. The Sentencing Judge appropriately had regard to the respondent’s ill health.
Leaving aside the matters mentioned earlier in these reasons, there is no apparent error in the Sentencing Judge’s sentencing remarks. The Sentencing Judge has referred to the relevant matters and appears to have given them some weight. However, the offending called for a heavier sentence than that imposed by the Sentencing Judge due to the predatory nature of the offending, the respondent’s position of trust and the length of time over which it occurred. Further, a strongly deterrent sentence is required given the respondent’s previous offending. The sentence imposed was outside the range of permissible sentencing options available to the Sentencing Judge. It cannot be overlooked that after the commission of Counts 1 to 5 on the Information, the complainant made a limited disclosure of the sexual abuse to his mother. The complainant’s family told the respondent he was no longer welcome in their house. Despite this warning, after a few months the respondent continued to offend.
The interests of society and the protection of children require this Court to maintain adequate standards of punishment for offending of this kind. Sexual abuse of children is clearly a serious and pervasive problem in society. Offences such as this have an insidious effect upon the community. These offences cause a feeling of outrage and revulsion in the community.[11] Sexual offending against children, including young teenagers, calls for a strong sentencing response in order to ensure that the sentence achieves the objectives of maintaining the safety of the community, deterrence and punishment.[12] As Kourakis CJ observed in R v MJJ, R v CJN:[13]
The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.
[11] R v D (1997) 69 SASR 413 at 12.
[12] R v RGC [2020] SASCFC 102.
[13] (2013) 117 SASR 81 at [84].
In our view, the sentence in this case fell so far below the appropriate standard for sexual offences of this nature that it fails to maintain an adequate standard of punishment. Where offenders exploit the vulnerability of immature complainants, deterrence, both general and personal, is a very important factor when determining an appropriate sentence.
To allow the sentence to stand would undermine public confidence in the administration of justice. The gravity of the respondent’s offending overwhelms his personal circumstances including his serious ill health. Strong reasons of public policy exist which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State. We would grant permission to appeal against sentence and allow the appeal. The respondent is therefore to be resentenced.
Resentence
The Sentencing Judge had before him some information about the health of the respondent. As the appeal is to be allowed and the respondent resentenced, further information requested by the Court regarding developments in the respondent’s health may be considered.
The original diagnosis of rectal cancer was made in 2019. The respondent initially refused both surgery and chemotherapy before agreeing to surgery in May 2021. The surgery was complicated by tumour perforation and the surgeon was unable to achieve a clear margin around the tumour. His diagnosis now is that he has “Stage 2” rectal cancer which means that although the cancer has not spread to other areas of his body, the respondent remains at high risk of tumour recurrence (40–50% within five years). If that occurs, he has a reduced life expectancy. The respondent does not intend to pursue chemotherapy, despite his doctor having explained the benefits of the treatment. With chemotherapy, his chances of dying from cancer decrease by 30%. The DPP, on appeal, established that the medical services in prison can appropriately facilitate such therapy and manage the respondent’s condition, should the respondent choose to proceed with that course. It is accepted that the respondent’s serious ill health will make his time in custody more difficult.
As discussed earlier, the Sentencing Judge was not informed of an agreed factual basis for sentencing. On resentence it is appropriate to have regard to that agreement. The agreement related to Counts 5 and 9 on the Information. It was accepted on appeal that in relation to Count 5, the respondent’s finger did not penetrate the complainant’s anus. In relation to Count 9, it was argued that in addition to licking the complainant’s penis, the respondent fellated him. We will resentence on the new factual basis. We have had regard to the updated information concerning the respondent’s cancer diagnosis and treatment. We have also taken into account the submissions made on the respondent’s behalf before the Sentencing Judge.
For the eight counts of sexual offending we would impose one sentence. But for the respondent’s plea of guilty we would have sentenced him to seven years and six months imprisonment. We allow a reduction of four months for his plea of guilty.
In relation to the breaches of the Act, for the breach of s 66L(2), we would have imprisoned the respondent for a period of 12 months. For the breach of s 44(1) of the Act, we would have imprisoned the respondent for a period of four months. Allowing for a degree of concurrency, we would impose one sentence of 14 months for the two breaches of the Act. We allow for a reduction of up to 30% for the respondent’s plea of guilty, leaving a sentence of 10 months for the breaches of the Act. That sentence is to be served cumulatively on the sentence for the sexual offences of 86 months.
That leaves a final sentence of eight years imprisonment. The non-parole period is to be no less than four fifths of the head sentence. We fix a non-parole period of six years and five months with the sentence to commence from when the respondent was first taken into custody on 8 November 2018.