R v BERRY - [2024] SASCA 116

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v BERRY
[2024] SASCA 116
Judgment of the Court of Appeal
(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Auxiliary Justice Hall)
26 September 2024
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 by the Director of Public Prosecutions for permission to appeal against sentence on the ground that the respondent’s sentence for sexual abuse of a child in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) was manifestly inadequate.
The respondent pleaded guilty to the following offences: aggravated producing child exploitation material (‘CEM’) in contravention of s 63(a) of the CLCA (Count 1); producing CEM in contravention of s 63(a) of the CLCA (Count 2); sexually abusing a child in contravention of s 50(1) of the CLCA (Count 3); and possessing CEM in contravention of s 63A(1)(a) of the CLCA (Count 4).
For Counts 1 and 2, the sentencing judge imposed a single sentence of three years, reduced to two years, 10 months and seven days. For Count 3, the sentencing judge imposed a sentence of five years, reduced to four years and nine months. And for Count 4, the sentencing judge imposed a sentence of two months, reduced to one month and 28 days.
The overall head sentence of seven years, nine months and five days was reduced, in accordance with the principle of totality, to imprisonment for seven years and six months. A non-parole period of six years was fixed. After allowing 13 months for time served in custody and on home detention bail, her Honour ultimately imposed a single sentence of imprisonment for six years and five months, with a non-parole period of four years and 11 months.
The Director complains that the sentence was manifestly inadequate, with the explanation for that manifest inadequacy lying in the component of the sentence referable to Count 3, and in particular, the starting point of five years imprisonment for the Count 3 offence.
Held (per the Court), refusing the application for permission to appeal against sentence:
1.Whist the component of the sentence referable to the charge of sexual abuse of a child was lenient, the overall sentence imposed was not so low as to undermine public confidence in the administration of justice.

Criminal Law Consolidation Act 1935 (SA) ss 50(1), 63(a), 63A(1)(a); Sentencing Act 2017 (SA) s 26, referred to.
Burgoyne v The King [2024] SASCA 61; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; House v The King (1936) 55 CLR 499; Musgrave v Western Australia (2021) 289 A Crim R 17; R v Amos (a pseudonym) [2021] SASCA 126; R v Beaumont [2023] SASCA 128; R v Bradley [2024] SASCA 56; R v D (1997) 69 SASR 413; R v Kelly [2023] SASCA 22; R v Lian [2023] SASCA 122; R v McIntyre (2020) 138 SASR 17; R v MJJ; R v CJN (2013) 117 SASR 81; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Singh [2024] SASCA 81; Warner v The King (2022) 142 SASR 275, considered.

R v BERRY
[2024] SASCA 116
Court of Appeal – Criminal: Doyle and Bleby JJA and Hall AJA

THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against sentence on the ground that the respondent’s sentence for sexual abuse of a child in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) was manifestly inadequate.
The respondent pleaded guilty to four offences:
·aggravated producing child exploitation material (‘CEM’) in contravention of s 63(a) of the CLCA (Count 1), with a maximum penalty of imprisonment for 12 years;
·producing CEM in contravention of s 63(a) of the CLCA (Count 2), with a maximum penalty of imprisonment for 10 years;
·sexually abusing a child in contravention of s 50(1) of the CLCA (Count 3), with a maximum penalty of imprisonment for life; and
·possessing CEM in contravention of s 63A(1)(a) of the CLCA (Count 4), with a maximum penalty of imprisonment for five years.
The respondent was entitled to a reduction in his sentence of up to five per cent for his pleas of guilty.
For Counts 1 and 2, the sentencing judge imposed a single sentence of three years, reduced to two years, 10 months and seven days on account of the respondent’s pleas of guilty. For Count 3, the sentencing judge imposed a sentence of five years, reduced to four years and nine months. And for Count 4, the sentencing judge imposed a sentence of two months, reduced to one month and 28 days.
The sentencing judge considered that the sentences should be served cumulatively, resulting in an overall head sentence of imprisonment for seven years, nine months and five days. This sentence was then reduced, in accordance with the principle of totality, to imprisonment for seven years and six months.
As the respondent fell to be sentenced as a serious repeat offender, with a non-parole period of not less than four-fifths of his head sentence, the judge fixed a non-parole period of six years.
After allowing 13 months for time served in custody and on home detention bail, her Honour ultimately imposed a single sentence of imprisonment for six years and five months, with a non-parole period of four years and 11 months.
The application for permission to appeal
The Director seeks permission to appeal on a single ground, namely that the sentence imposed for Count 3 (sexual abuse of a child) was manifestly inadequate. As the sentencing judge ultimately imposed a single sentence for all four offences, the ground of appeal must, strictly speaking, be construed as a complaint that the overall sentence was manifestly inadequate, but with the explanation for that manifest inadequacy lying in the component of the sentence referable to Count 3.
In any event, the substance of the proposed ground of appeal is clear, namely that the starting point of five years imprisonment for the offence of sexual abuse of a child was too low.
The principles governing a prosecution appeal against sentence are well known and not in dispute. They were recently summarised by this Court in R v Singh:[1]
The principles governing an application for permission to appeal against sentence by the Director are well established. Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’ where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle.[2]
If a sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice, or so low that the magnitude of the disparity itself reveals a misapplication of principle, it may also be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[3]
[1]     R v Singh [2024] SASCA 81 at [30]-[31] (Livesey ACJ, Doyle and David JJA).
[2]     R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
[3]     R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ.
The Director contends that the sentence imposed upon the respondent was not only manifestly inadequate, but so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice; or, to put it another way, the sentence was so low that the magnitude of the disparity is demonstrative of an error of principle.
It is appropriate to commence by outlining the circumstances of the offending, and the personal circumstances of the respondent, before returning to the merits of the Director’s complaint of manifest inadequacy in the sentence imposed, and the issue of whether it is appropriate to grant permission to appeal.
Circumstances of the sexual abuse of a child offence
The victim of Count 3 was KB, who was born on 13 November 2003. The offending took place between about 2018 and 2020 when the victim was 15 and 16 years of age. The respondent was aged between 35 and 37 years.
The respondent first met KB when KB was 13 years of age. He met KB, and his younger brother, SB, through their father, who used to work with the respondent as a corrections officer.
When KB was about 14 years of age, he began doing some jobs for the respondent, including mowing his lawn and walking his dog, in return for money. This involved KB spending time at the respondent’s house in Salisbury Park, where the respondent lived with his husband, MC.
The respondent and MC also babysat KB and SB on a number of occasions. This included KB staying overnight at the respondent’s house, either alone or with his brother.
Over a period of approximately two years, the respondent gave KB gifts, including rings, necklaces, money and food. He provided KB with an iPhone, and assisted him to install Snapchat. They later communicated using this phone and Snapchat.
The above occurred in a context where KB came from a home where money was tight, and in circumstances where KB had a relatively distant relationship with his father. As the sentencing judge observed, KB saw the respondent’s house as a haven, with the respondent showing interest in him and giving him gifts. The respondent actively sought to cultivate a relationship with KB.
When KB was 15 years of age, the respondent’s Snapchat messages to him became sexual in nature. The respondent offered KB money to send him naked pictures, and videos of KB masturbating. Over a period of about 12 to 18 months, KB sent the respondent about 12 pictures and videos of himself masturbating with an erect penis.
On one occasion, prior to 19 July 2019, when KB was 15 years of age, he and SB stayed over at the respondent’s home. At about 1am, KB woke to find his pants around his ankles and the respondent performing fellatio on him. KB said ‘no’, and the respondent stopped and left the room. KB fell asleep again, but was woken again by the respondent performing fellatio on him for a second time. KB got up and left the respondent’s house, walking to a friend’s house.
There were numerous subsequent occasions when the respondent placed his hand on KB’s leg, and up his groin inside his shorts. This often occurred when they were travelling in the car together. KB would tell the respondent to ‘fuck off’, and push his hand away. On one occasion, KB got out of the car in Gawler and walked about four hours to his home. On another occasion, the respondent’s actions almost caused them to be in a car accident.
There were also a number of occasions when the respondent attempted to pull KB’s pants down, and to convince KB to allow him to perform fellatio on him.
An analysis of the respondent’s mobile phone provided evidence of text messages between the respondent and his husband, MC, which were indicative of the respondent having a sexual interest in KB. The messages also revealed that the respondent had deliberately pursued and groomed KB for his own sexual gratification.
On 27 March 2012, only a few days before the respondent’s arrest, KB received numerous calls from a private number which he did not answer. Shortly after, the respondent called KB via Snapchat. The respondent repeatedly told KB that he loved him, that their age gap should not matter, and that he knew he had ‘fucked [him] up’ but that he just wanted KB to love him. The respondent threatened to stand in front of a truck if KB did not admit loving him.
On 30 March 2012, the respondent was arrested for his CEM offences.
The following day, after seeing a news report in the media about the arrest of two men, one of whom was a corrections officer, for offences relating to ‘child pornographic material’, KB attended Elizabeth Police Station. He told police he recognised the blurred image used in the news report as the respondent.
Circumstances of the CEM offending
Although the Director’s challenge to the sentence imposed was focused upon the component of the sentence referable to Count 3, it is necessary to consider that sentence in the context of the offending as a whole. It is thus appropriate to mention the circumstances of the other three counts.
Following the respondent’s arrest on 30 March 2021, police seized an iPhone and Hewlett Packard laptop. After searching the place where the respondent was temporarily living in Port Lincoln, they also seized an iPad and MacBook Pro. On the same day, police also searched the house the respondent shared with MC. During that search, police found various items, including a video camera device disguised as a clock radio in the bathroom, a USB drive on the bedside table in the bedroom the respondent shared with MC, a hard drive and an Apple Mac computer and an ASUS laptop.
On the USB drive, police found numerous video files depicting children naked and bathing in the bathroom, being videos taken from the hidden camera mentioned above. Count 1 (aggravated producing CEM) related to 70 video files located on the USB drive. The videos showed children naked and bathing. Most were created in 2017 or 2018, and featured KB (when he was aged between 13 and 15) and/or SB (when he was aged 11 or 12) while naked and bathing. Some 14 of the videos were created earlier, in 2012, and showed two other children (aged five and eight) naked and bathing. Count 2 (producing CEM) related to seven further video files found on the USB drive, which showed KB naked and bathing just after he had turned 14 years of age. Some of these video files were also located on the MacBook Pro.
It is apparent that, when staying at the respondent’s home, KB and SB were encouraged to use the bathroom, thus enabling the CEM featuring them on the USB drive to be recorded.
As to Count 4, police found what they thought were 108 CEM files across three devices, being the iPad, iPhone and MacBook Pro. Many were in fact thumbnails or duplicates of the same images. The charge of possessing CEM was ultimately confined to three images found on the iPhone, being category 1 images depicting males under the age of 17, exposing their penises, in stages of undress and engaged in acts of masturbation.
Impact on the victim
KB provided a victim impact statement in which he described the profound and lasting effects of the offending upon him and his family. He described the psychological and physical pain he endured, and continues to endure. This included fear and self-loathing. He explained that his difficulties led to him dropping out of school early, falling in with ‘the wrong crowd’, and doing whatever he had to do to numb himself. He moved interstate and worked himself ‘into the ground’ in an attempt to distract himself from, and forget about, the offending.
KB also described his sense of isolation and lack of support because he feared he would not be believed. He concluded his statement by referring to his childhood as miserable and torturous as a result of the respondent’s offending.
KB’s mother also provided a victim impact statement. She described the changes in KB’s behaviour, and the fractured relationships within their family, which she attributed to the offending. She also described her overwhelming sense of guilt for trusting the respondent and not protecting her son.
The respondent’s personal circumstances
The respondent’s personal circumstances were set out in a report from a clinical psychologist, Ms Heinrich, and the submissions of counsel.
At the time of sentence, the respondent was 40 years of age with no criminal antecedents. He was born in Adelaide, and grew up with his parents and two older brothers. He was particularly close to his mother, who died about eight years ago. He is also close with his father, and had become his primary carer. He was close with one of his brothers, but had limited contact with the other.
The respondent was reported as having a strong educational background and employment history, including working for the Department of Correctional Services for several years. At the time of his arrest, he was the Acting Manager of Custodial Operations at the Port Lincoln Prison. After his arrest, he commenced employment as a vineyard labourer in the Riverland.
Various character references provided on behalf of the respondent described him as a kind, caring and honest person, who was generous towards others. However, in circumstances where some of the references described character traits which were at odds with his offending, and did not make clear that the authors were aware of the circumstances of the respondent’s offending, there was a limit to the weight that the sentencing judge was prepared to attach to them.
In her report, Ms Heinrich said that the respondent’s background included suffering Post Traumatic Stress Disorder as a result of being the victim of a home invasion as a teenager. She expressed the opinion that the respondent had used alcohol as a coping strategy at various times in his life, and met the criteria for an alcohol use disorder at the time of his offending. She said that this would have heightened his propensity to act in ways that were out of character. That said, as the sentencing judge observed, the respondent’s offending was not impulsive offending which occurred only in the context of being intoxicated.
Ms Heinrich also expressed the opinion that the respondent did not suffer from a paedophilic disorder. In her view, the respondent’s desensitisation to pornography created an addiction to explicit material which contributed to his offending. She further identified his lack of assertiveness, fear of abandonment, tendency to please others and his alcohol use as risk factors that needed to be managed.
The respondent had initially denied any sexual interest in KB, but he ultimately acknowledged to Ms Heinrich, and in submissions made on his behalf, that he did have a sexual interest in KB. Through his counsel, he accepted that he had groomed KB, and built and maintained a relationship with him; and that he had experienced sexual gratification from his interactions with KB. However, the respondent continued to deny having any sexual interest in children other than KB. As the sentencing judge recognised, this was difficult to reconcile with the CEM which the respondent had produced and possessed, and which depicted children other than KB. Her Honour sentenced the respondent for his CEM offending on the basis that this material was intended to excite or gratify the respondent’s sexual interest in children.
The sentencing judge expressed some concerns about the limited, and in some respects inaccurate, information upon which Ms Heinrich expressed her opinions. However, in circumstances where the prosecution accepted that the respondent did not meet the criteria for a paedophilic disorder, she was prepared to sentence the respondent on that basis.
The judge noted the respondent’s willingness to address his use of pornography and other matters relevant to his offending, and that he had already attended a number of sessions with psychologists. Her Honour also noted the respondent’s ultimate acceptance of his sexual interest in KB, acknowledging Ms Heinrich’s view that these were positive indicators for successful rehabilitation. Whilst also mentioning that Ms Heinrich had suggested that the respondent had a low risk of re-offending, the judge said that, until the respondent accepted full responsibility for his offending, it was appropriate to exercise some caution in assessing his risk of re-offending and prospects for successful rehabilitation.

Finally, the sentencing judge also took into account that the respondent’s former employment within the prison system meant that his time in custody would be more onerous than for other prisoners. Consistent with the requirements of R v Lian,[4] this was supported by evidence, including evidence to the effect that efforts to accommodate the respondent safely may result in difficulties for him in accessing certain rehabilitation programs, and hence in obtaining parole. In her Honour’s view, this hardship was a circumstance that allowed for some mitigation.
[4] R v Lian [2023] SASCA 122 at [68], [70] (Kourakis CJ), [145]-[150] (Doyle JA, Lovell JA agreeing).
The sentence imposed
The sentencing judge summarised the circumstances of the respondent’s offending, and his personal circumstances, in terms similar to the above. Her Honour then turned to the sentence to be imposed.
Her Honour was satisfied that the respondent was well aware of the hidden camera, having regard to the images downloaded on the USB drive, and the fact that he could be seen in some of the videos looking directly at the camera. Her Honour noted that the respondent had, albeit reluctantly, acknowledged his sexual interest in KB; and added that his sexual interest in other children was apparent from the material he produced and possessed, and from his text messages to MC. However, as mentioned, her Honour accepted that the respondent had not been diagnosed with a paedophilic disorder.
The judge was satisfied that the respondent produced the CEM material, and thereby exploited KB, SB and the other children depicted in the videos in order to gratify his sexual interest in those children. Her Honour explained that the offending against KB represented a gross breach of the considerable trust placed in the respondent by KB’s parents. Further, the offending continued for a period of several years, and had had a profound and ongoing impact on KB and his family.
Her Honour noted the importance the criminal law placed upon protecting children from sexual predators, and the need for personal and general deterrence in respect of offending of this type. A sentence of imprisonment was the only appropriate penalty.
Having regard to the timing of his pleas of guilty, the sentencing judge was prepared to apply the maximum available reduction of 5 per cent in his sentence for each offence.
Invoking s 26 of the Sentencing Act 2017 (SA), her Honour imposed a single sentence for Counts 1 and 2. From a starting point of imprisonment for three years, but reduced by five per cent, the judge arrived at a sentence of imprisonment for two years, 10 months and seven days.
In the case of Count 4, the sentencing judge emphasised that it was not a victimless crime; that real children were sexually abused to create the material. Whilst there were only three unique images on the respondent’s iPhone, a sentence of imprisonment for two months was appropriate. After reduction for his guilty plea, the judge indicated a sentence of imprisonment for one month and 28 days.
Turning to Count 3, the sentencing judge referred to the Chief Justice’s recent observations in R v Lian[5] to the effect that the sentencing standard in R v D[6] was relevant in sentencing any person who commits sexual offences against children. She also referred to his Honour’s reiteration in that case of his earlier observations in Warner v The King:[7]
The importance of the guide given in R v D is that it indicates the range in which sentences for repeated sexual offending against the same victim could be expected to fall following the Court’s review of the relative weight which should be accorded to deterrence and the protection of children. It follows too that the guideline accommodates a range of factors personal to the offender which are generally encountered in cases of that kind. Nonetheless, as Doyle CJ observed, the guidelines leave the precise balancing of all the circumstances of a particular offence and offender to the sentencing Judge. However, the sentences imposed will tend to oscillate within a small range around the indicative sentence unless there is a circumstance peculiar to the case which outweighs significantly the generality of circumstances which characterise cases of this kind.
[5]     R v Lian [2023] SASCA 122.
[6]     R v D (1997) 69 SASR 413.
[7]     Warner v The King (2022) 142 SASR 275 at [19] (Kourakis CJ); R v Lian [2023] SASCA 122 at [96] (Kourakis CJ).
The judge described the standard in R v D as applying in cases involving unlawful sexual intercourse with a child over the age of 12 years,[8] where there are multiple offences over a period of time. Whilst such cases should attract a starting point of imprisonment for 10 years, it was necessary to consider where the case sat on the continuum of offending to which the standard applied.
[8] Now applicable to children aged 14 and older, given the 2005 amendments to s 49(1) of the CLCA: see Warner v The King (2022) 142 SASR 275 at [77] (Livesey P), [121] (Doyle JA); Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA), s 11.
Her Honour then outlined the features of the respondent’s offending which she took into account: it occurred over a period of two years when KB was aged about 15 and 16; the respondent was in a position of trust insofar as KB’s parents had entrusted him with KB’s care; the offending involved two acts of fellatio on the one night, albeit separated in time; it also involved multiple acts of indecent assault, and occasions when he procured KB to engage in sexual activity (that is, to masturbate and send him videos in return for payment).
The judge also had regard to her concern that the respondent had not yet taken full responsibility for his offending, and had attempted to downplay it and shift the blame onto others. He had also been reluctant to acknowledge his sexual interest in children. Whilst noting that the respondent’s engagement with psychologists indicated a preparedness to take steps to assist his rehabilitation, her Honour considered that other matters spoke poorly as to his remorse, contrition and prospects for rehabilitation.
The judge concluded that having regard to ‘the nature of the unlawful sexual acts committed by [the respondent] and the period during which they were undertaken and all other relevant sentencing considerations’, it was appropriate to adopt a starting point of imprisonment for five years. After reduction for his guilty plea, that resulted in a head sentence for Count 3 of imprisonment for four years and nine months.
The judge considered whether there ought to be a degree of concurrency between the sentence for Count 3 and the sentence for Counts 1 and 2. Her Honour accepted that there was some overlap in the offending insofar as aspects of the offending in Counts 1 and 2 had, as their basis, the respondent’s obsession with KB. However, given the seriousness of the Count 3 offending, and the fact that it related to ‘contact offending’, her Honour considered it appropriate for that sentence to be served cumulatively upon the sentence for Counts 1 and 2.
The judge also made the sentence for Count 4 cumulative upon the sentences for the earlier counts on the basis that it was separate and distinct offending.
Having arrived at a cumulative head sentence of imprisonment for seven years, nine months and five days, the judge addressed the principle of totality. Her Honour considered that in order to ensure that the sentence ultimately imposed was proportionate to the overall criminality of the offending and the respondent’s personal circumstances, it was appropriate to reduce the sentence to a head sentence of imprisonment for seven years and six months.
As the respondent was a serious repeat offender, the judge was required to fix a non-parole period of not less than four-fifths of the head sentence, and so fixed a non-parole period of six years.
After allowing 13 months for time served in custody and on home detention bail, the judge imposed a single sentence of imprisonment for six years and five months, with a non-parole period of four years and 11 months.
The judge noted that the sentence was not able to be suspended or served on home detention. Her Honour also made forfeiture and intervention orders.
Sexual offending against children
Before addressing the circumstances of the present case more closely, it is convenient to address some more general submissions made by the Director in relation to the seriousness of sexual offending against children, and the importance of upholding the sentencing standard or guideline in R v D.
Without wishing to detract from their significance, it is not necessary to say much about these general submissions. They are matters that have been addressed by this Court on several occasions. Some brief observations will suffice.
It is to be accepted that sexual offending against children, including teenagers, is inherently serious and requires a strong sentencing response in order to protect the community, deter and punish. In part this reflects the fact that it is now well understood that such offending is often marked by significant and long-lasting psychological and emotional, and sometimes physical, harm caused to the victims.[9]
[9] R v MJJ; R v CJN (2013) 117 SASR 81 at [84] (Kourakis CJ, Vanstone J agreeing ); R v McIntyre (2020) 138 SASR 17 at [45]-[60] (Doyle J, Stanley and Hughes JJ agreeing); R v Amos(a pseudonym) [2021] SASCA 126 at [36] (Livesey P, Lovell and David JJA); Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [52] (Livesey P, Doyle and David JJA).
The seriousness of the offending is reflected in the sentencing standard in R v D. As Doyle CJ explained in that case, the standard was determined having regard to the need for sentences in cases involving sexual offending against children to reflect the ‘feeling of outrage and revulsion in the community’; the likelihood of serious harm to victims of a prolonged, perhaps lifelong, duration; the insidious effect of the offending upon the community more generally; the prevalence of such offending; the need to deter would be child sex offenders; and the maximum penalties for such offending.[10]
[10] R v D (1997) 69 SASR 413 at 423 (Doyle CJ); Warner v The King (2022) 142 SASR 275 at [119] (Doyle JA).
The continued importance of maintaining the standard reflected in R v D has been affirmed in several recent decisions of this Court.[11]
[11] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [51], [54] (Livesey P, Doyle and David JJA); Warner v The King (2022) 142 SASR 275 at [19]-[20] (Kourakis CJ); R v Lian [2023] SASCA 122 at [94]-[107] (Kourakis CJ, Lovell and Doyle JJA agreeing); R v Bradley [2024] SASCA 56 at [61] (Lovell, Bleby and David JJA).
The standard applies most directly in cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority.[12] It is of obvious importance in many cases involving the sexual abuse of a child in contravention of s 50(1) of the CLCA (formerly referred to as maintaining an unlawful sexual relationship with a child). But it also informs, and assists, sentencing for sexual offences involving a child more generally.[13]
[12] R v D (1997) 69 SASR 413 at 423 (Doyle CJ).
[13] Warner v The King (2022) 142 SASR 275 142 at [79]-[80] (Livesey P), [118] (Doyle JA); Burgoyne v The King [2024] SASCA 61 at [21] (Livesey P, Bleby and David JJA).
At the same time, this Court has repeatedly emphasised the flexibility that is appropriate, indeed required, in applying the guidance provided by R v D.[14] In each case, it will be necessary to have regard to considerations such as the nature and frequency of the offending; the duration of the period over which it occurred; the relationship between the offender and victim, including the extent to which the offender was in a position of trust and authority, or otherwise groomed or exploited the victim; the age and vulnerability of the victim; the age disparity between the offender and victim; whether the offending involved any use of force or coercion; the impact of the offending upon the victim; and the personal circumstances of the offender.
[14] For example, Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [54]-[56] (Livesey P, Doyle and David JJA); Warner v The King (2022) 142 SASR 275 at [80] (Livesey P), [123] (Doyle JA); R v Bradley [2024] SASCA 56 (Lovell, Bleby and David JJA).
In the present case, matters that were potentially indicative of the offending being less serious than some instances of the sexual abuse of a child were said to include the fact that the sexual acts were not of the most serious kind, and that the respondent was not in any formal position of trust or authority.
As to the nature and frequency of the sexual acts constituting the offending, the respondent’s offending involved two acts of fellatio on the victim (on the same night, but separated in time); and multiple acts of indecent assault, and occasions when the respondent procured KB to engage in sexual activity (that is, to masturbate and send him videos in return for payment).
It may be accepted that these sexual acts were not as invasive or depraved as in some other cases. Whilst it is relevant to consider the nature and frequency of the sexual acts constituting the offending, the authorities emphasise that caution is appropriate when considering these matters. There is no hierarchy of sexual acts, and the sentencing court should not rely simply upon generalisations or assumptions. The seriousness of the offending must be determined according to its own individual circumstances, including the effect of the offending upon the victim.[15] There is no necessary correlation between the nature of the offender’s interference with, or violation of, the victim’s body and the psychological harm that may be suffered by the victim.[16]
[15] R v Beaumont [2023] SASCA 128 at [48] (Livesey P, Lovell and Bleby JJA), applying R v Friesen [2020] 1 SCR 424 at [146]; see also Musgrave v Western Australia (2021) 289 A Crim R 17 at [3]-[8] (Quinlan CJ), as applied in this Court in, for example, Baxter (a pseudonym) v The King [2024] SASCA 64 at [45] (Livesey P, David JA and Stein AJA); Turnbull (a pseudonym) v The King [2023] SASCA 121 at [29] (Livesey P and Doyle JA); Warner v The Queen (2022) 142 SASR 275 at [139] (Doyle JA); Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [55] (Livesey P, Doyle and David JJA).
[16] R v Beaumont [2023] SASCA 128 at [37] (Livesey P, Lovell and Bleby JJA), applying R v Friesen [2020] 1 SCR 424 at [144].
In the present case, the fact that the sexual acts were not as invasive or depraved as in some other cases needed to be weighed against the extended period of time over which they occurred, and the significant impact they had on the victim. As the judge observed, the offending has had profound and lasting effects on the victim.
As to the existence of a relationship of trust and authority, there are two related points to be made. The first is that while a formal position of trust and authority will be significant, trust and authority arising more informally from the circumstances of the relationship between the offender and victim may also inform the culpability of the offender and the seriousness of the offending.[17] In the circumstances of the present case, for example, it was appropriate for the sentencing judge to take account of the fact there was a relationship of trust inherent in the respondent being entrusted with the care, including overnight care, of his friend’s child.
[17] R v Chesterman [2017] SASCFC 31 at [46] (Doyle J, Kelly and Parker JJ agreeing); R v Dyett [2023] SASCA 41 at [38] (Livesey P, Bleby and David JJA); R v Lian [2023] SASCA 122 at [98], [100], [105] (Kourakis CJ).
The second is that, as well as considering the extent of any element of trust or authority, it is also relevant to consider the nature of the relationship between the offender and victim more broadly. To the extent that the offender’s conduct involved grooming or an exploitation of the vulnerability of the victim,[18] this will also inform the culpability of the offender. In the present case, whilst no physical force or coercion was used, the respondent engaged in conduct which may fairly be described as deliberate, indeed careful, grooming of the victim over an extended period of time. His offending also involved a significant degree of exploitation given the marked disparity in terms of age and life experience between the middle-aged respondent and his teenage victim, and the apparently impressionable and vulnerable nature of the victim.
[18] R v Bradley [2024] SASCA 56 at [66] (Lovell, Bleby and David JJA).
Manifest inadequacy in the sentence for sexual abuse of a child
The principles governing manifest inadequacy are not in dispute,[19] and need not be restated.
[19] See, for example, the summary in R v Kelly [2023] SASCA 22 at [36] (Lovell JA).
In contending that the starting point of five years for the respondent’s offence of sexually abusing a child was not only manifestly inadequate, but so low as to undermine confidence in the administration of justice, the Director emphasised not only the maximum penalty of imprisonment for life, and the importance of the guidance provided by R v D, but also the combination of the following matters:
·The offending involved a persistent course of sexual abuse that continued for approximately two years.
·While there were only two acts of unlawful sexual intercourse (being the two instances of fellatio on the same night), they were separated in time, the second instance occurring after KB had said ‘no’ in relation to the first instance, and after the respondent had waited for KB to fall back asleep.
·Further, these two acts needed to be seen in the context of the balance of the respondent’s sexual abuse of KB, which included touching his groin area on multiple occasions, attempting to perform fellatio upon KB, and on multiple occasions causing KB to film himself naked and masturbating for money.
·The respondent was in an informal position of trust. KB’s parents had entrusted him with KB’s care, including on an overnight basis.
·There was a difference of approximately 20 years in age between the respondent and KB, with the respondent being about 34 years of age and KB about 15 years of age, at the time of the first occasion of sexual intercourse. The relative ages of the victim and respondent was said to be indicative of the degree of power imbalance, and exploitation, involved in the offending.
·The respondent groomed KB over a period of time. He showed interest in him, gave him gifts and money, and took him out for meals, in circumstances where KB came from a family with limited means and was receptive of the attention. The gifts provided by the respondent included the mobile phone on which the respondent assisted KB to install Snapchat, and which then became the means by which the respondent procured sexual images and footage from KB.
·The text messages between the respondent and his husband revealed the deliberate and calculated nature of the respondent’s grooming and exploitation of KB for his own personal gratification, and the respondent’s fundamental disregard for KB’s welfare.
·The actual harm caused to KB was profound and long-lasting.
·The broader harm to the community caused by sexual offending against children.
In addition to the above features of the offending, the Director relied upon the limited scope for leniency in the respondent’s personal circumstances. Whilst he had no previous history of offending, this was of limited significance given the sustained and significant nature of his present offending, including his CEM offences. Further, the respondent’s steps towards rehabilitation needed to be considered in a context where the sentencing judge, for the reasons she gave, had grounds to be cautious about the respondent’s prospects of successful rehabilitation. Although the Director accepted the relevance of the hardship the respondent was likely to face in prison due to his former employment, he cautioned against attaching too much weight to this factor.

Bearing all of the above in mind, there is force in the Director’s submission to the effect that, although a starting point less than the 10 years imprisonment indicated in R v D was appropriate in a flexible application of that standard, a starting point as low as five years imprisonment was too low. Certainly, we would accept that the starting point was a lenient one in the circumstances outlined above.
However, before reaching a conclusion that the sentence imposed was manifestly inadequate, let alone so low as to undermine public confidence and justify a grant of permission to appeal, it is necessary to mention two further considerations.
The first involves returning to the significance of the fact that the sentencing judge ultimately imposed a single sentence for all four offences. Further, in doing so, her Honour acknowledged that there was some overlap between the Counts 1 and 2 offending, and the Count 3 offending, given that a significant proportion of the CEM the subject of Counts 1 and 2 related to KB. Having imposed a single sentence for Counts 1 and 2, the judge declined to order any partial concurrency between this sentence and the sentence identified for Count 3. However, in recognition of the need to ensure that the ultimate sentence was proportionate to the overall criminality of the respondent’s offending, and his personal circumstances, the judge made a modest reduction for totality.
As mentioned earlier, the Director’s submission of manifest inadequacy must, strictly speaking, be considered as a challenge to the sentence ultimately imposed, and not simply a component of that sentence. A component of a sentence which, when viewed in isolation, appears to be unduly harsh or lenient, may lose that character when seen in the context of the overall sentencing exercise. However, a challenge to a component which represents a significant part of the total sentence may in some cases be sufficient to make out manifest inadequacy in the sentence as a whole. But there is a further complication where the impugned component forms part of a total sentence which was properly the subject of a reduction for totality so as to ensure proportionality with the overall criminality of the offending, and the offender’s personal circumstances.
In circumstances where we accept that there was sufficient overlap with the offending the subject of Counts 1 and 2, such that there was scope for the judge to make a reduction to ensure proportionality, it becomes difficult to conclude that the overall sentence was manifestly inadequate, let alone so low as to warrant the intervention of this Court on a Crown appeal.
The second consideration is that no express error of principle has been identified in the sentencing judge’s approach. To the contrary, her Honour’s sentencing remarks reveal a careful assessment of all of the relevant sentencing considerations, and include an appropriate articulation of the approach to be taken in applying the guidance provided by R v D.
While the essence of a challenge based upon a submission of manifest inadequacy is a challenge to the outcome rather than the reasoning process, the absence of any identifiable error of principle is a relevant consideration when deciding whether to grant permission to appeal.
Ultimately, however, the issue remains whether the sentence imposed was not only manifestly inadequate, but so low as to undermine public confidence in the administration of justice. We are not satisfied that the sentence can fairly be described in these terms. In light of the complicating considerations mentioned above, we prefer not to express a concluded view as to whether the sentence was manifestly inadequate. However, we are satisfied it was not so low as to undermine public confidence in the administration of justice.
To the extent that it is necessary for this Court to reinforce the seriousness of sexual offending involving victims who are children, and the importance of applying the guidance provided by R v D, we are satisfied that these reasons will achieve this objective.
For the reasons given, we refuse the Director’s application for permission to appeal against sentence.