R v Brand (a pseudonym)
[2025] SASCA 17
•27 February 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v BRAND (A PSEUDONYM)
[2025] SASCA 17
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
27 February 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
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
The respondent, aged 41, first met the victim, aged 14, when she purchased cannabis from him. The victim began to regularly visit the respondent at his home to purchase cannabis, and an unlawful sexual relationship developed thereafter.
The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child (Count 1), and one count of supplying a controlled drug to a child (Count 2). In respect of Count 1, the sentencing judge commenced with a starting point of five years imprisonment, reduced by five per cent to four years and nine months. In respect of Count 2, the sentencing judge commenced with a starting point of 12 months imprisonment, reduced by five per cent to 11 months and 13 days. The sentencing judge ordered that these sentences be served cumulatively, resulting in a head sentence of imprisonment of five years, eight months and 13 days, with a non-parole period of three years.
The Director of Public Prosecutions seeks permission to appeal against the sentence imposed for both counts on the ground of manifest inadequacy. The respondent submits that even if permission to appeal is granted, the Court has a “residual discretion” to dismiss the appeal.
Held, allowing the appeal and resentencing the respondent on Count 1:
1.The sentence imposed was manifestly inadequate, as the offending was protracted and the age disparity between the respondent and victim significant.
2.Having regard to the context and purpose of the Criminal Procedure Act 1921 (SA), the Court does not have a residual discretion to dismiss an appeal against sentence where permission to appeal has been granted.
3. The respondent is resentenced to a head sentence of 11 years, four months and 25 days with a non-parole period of six years and 10 months.
Controlled Substances Act 1984 (SA) s 33F; Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) ss 150, 157, 158; Legislation Interpretation Act 2021 (SA) s 16, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Fox v Percy (2003) 214 CLR 118; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; R v A2 (2019) 269 CLR 507; R v Buttigieg (2020) 352 FLR 170; R v D (1997) 69 SASR 413; R v Drewett (1983) 35 SASR 344; R v Dyett [2023] SASCA 41; R v Kelly [2023] SASCA 22; R v Lian [2023] SASCA 122; R v McIntyre (2020) 138 SASR 17; R v Yaroslavceff [2022] SASCA 123, applied.
Kentwell v The Queen (2014) 252 CLR 601; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; R v Friesen [2020] 1 SCR 424; R v Harkin (2011) 109 SASR 334; Warner v The King [2022] SASCA 142, discussed.
R v BRAND (A PSEUDONYM)
[2025] SASCA 17Court of Appeal—Criminal: Lovell, Bleby, and David JJA
THE COURT: The respondent, who was 41 years old, commenced an unlawful sexual relationship with EH beginning when she was aged 14. EH first met the respondent when she purchased cannabis from him. The unlawful relationship developed after EH regularly visited the respondent’s home to purchase cannabis.
The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child (Count 1),[1] and one count of supplying a controlled drug to a child (Count 2).[2] For the offence of maintaining an unlawful sexual relationship, the sentencing judge imposed a sentence of five years. For the offence of supplying a controlled drug to a child, the sentencing Judge imposed a sentence of 12 months. The sentences were both reduced on account of the respondent’s guilty pleas and ordered to be served cumulatively, resulting in a head sentence of five years, eight months and 13 days with a non-parole period of three years.
[1] Criminal Law Consolidation Act 1935 (SA) s 50(1).
[2] Controlled Substances Act 1984 (SA) s 33F(a).
The Director of Public Prosecutions (“the Director”) appeals the sentence contending that the sentence for both offences are manifestly inadequate and warrant the intervention of this Court.
Factual basis of the offending
The respondent and EH first met in June 2016, when he was aged 41 years old and she was aged 14. EH encountered the respondent via a Facebook group chat created for the purpose of buying and selling cannabis. EH messaged the respondent privately and it was agreed that she would meet the respondent in the CBD the next day to collect a quarter ounce of cannabis.
After this initial transaction, EH purchased cannabis from the respondent for a second time, this time at the respondent’s home address. EH began to regularly visit the respondent’s home to purchase cannabis. During these visits, they would smoke cannabis together. Both EH and the respondent suffered from eating disorders.
EH began sleeping over at the respondent’s house. Initially she would sleep alone in his bed whilst he slept on the couch, but eventually EH and the respondent shared a bed. On one occasion, the respondent provided EH with alcohol. The respondent kissed her and touched her on the breasts and body. She passed out and could not recall what happened afterwards. This was the first sexual contact between them.
Thereafter, the respondent commenced an unlawful sexual relationship with EH during which numerous acts of penile vaginal intercourse, digital intercourse and fellatio occurred. This included, but was not limited to, providing EH with lingerie and asking her to pose for photographs in various explicit positions, and tying her hands and feet before proceeding to have sexual intercourse with her.
During the relationship, EH increased her cannabis intake to approximately 50 – 70 cones of cannabis a day.
The relationship ended in July 2018 when EH grew concerned about the respondent’s increasingly possessive behaviour. The respondent continued to contact EH via social media using various Facebook accounts. On one occasion, he threatened to commit suicide if she left him. This resulted in EH reporting the matter to Lifeline, which prompted the police investigation.
EH suffered mental health issues because of the respondent’s offending, and she attempted suicide on multiple occasions. She dropped out of high school and has since been unable to work. Her relationships with family and friends have been fractured.
Personal circumstances of the respondent
The respondent was 49 years old at the time of sentencing. He grew up in Kalgoorlie and after leaving school at an early age, unfortunately struggled with heroin and cannabis addiction. As stated, the respondent suffers from an eating disorder which is, like his drug addiction, a longstanding problem. A medical report tendered during the sentencing hearing established that the respondent’s health had deteriorated because of his anorexia. The report indicated that he also suffered from severe anxiety, phobia and panic attacks.
The respondent has an extensive criminal history, including various drug offences and a prior period of incarceration for an offence of causing grievous bodily harm.
The sentence imposed
In arriving at the sentence to be imposed, the sentencing Judge remarked that she was satisfied that the guideline established in R v D[3] did not apply. Despite that remark, the sentencing Judge considered that the offending was serious having been committed against a “very vulnerable young woman”. Her Honour observed:
The primary purpose in sentencing is to protect the safety of the community. Protection of vulnerable young persons is a paramount consideration. The secondary purposes are to ensure that you are punished and held accountable for the offending and that the offending is publicly denunciated. Any sentence imposed must provide both personal and general deterrence and promote your rehabilitation. The only appropriate penalty for the offending is a period of imprisonment.
[3] (1997) 69 SASR 413 (“R v D”).
In respect of Count 1, her Honour commenced with a starting point of five years imprisonment, reduced by five per cent on account of the respondent’s guilty plea to four years and nine months. In respect of Count 2, her Honour commenced with a starting point of 12 months imprisonment, reduced by five per cent to 11 months and 13 days. The sentencing Judge ordered that these sentences be served cumulatively, resulting in a head sentence of imprisonment of five years, eight months and 13 days. A non-parole period of three years was fixed.
In light of the seriousness of Count 1, her Honour considered that the sentence could not be suspended nor served on home detention.
Permission to appeal
The Director seeks permission to appeal on a single ground, namely that the sentences imposed were manifestly inadequate. The principles governing a prosecution appeal against sentence are well-known and not in dispute.
Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’. The rare and exceptional test should be rigorously applied.[4]
[4] R v Buttigieg (2020) 352 FLR 170; R v McIntyre (2020) 138 SASR 17; R v Yaroslavceff [2022] SASCA 123 at [71] (Doyle JA).
Manifest inadequacy is a conclusion. In determining whether a sentence is or is not plainly inadequate, an appellate court must essentially repeat the sentencing 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. A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.
If no error is established, then permission to appeal would be refused. If error has been established, then the offender has not been sentenced according to law. Before resentencing an appellant, the court must consider whether permission to appeal should be granted. An appellate court’s determination that a sentence is manifestly inadequate does not, of itself, justify permission to appeal. The question of whether the Crown should be granted permission to appeal involves issues ranging beyond those involved in the merits of the appeal. The question of double jeopardy must be considered.[5]
[5] R v Kelly [2023] SASCA 22.
The appellant’s submissions
In respect of Count 1, the Director submitted that the sentencing Judge erred in stating that the guideline principles established in R v D did not apply. The Director submitted that, in cases of sexual offending against children, the principles in R v D must always be applied. Further, the appellant submitted that the objective seriousness of the offending was such that a starting point of five years imprisonment failed to maintain adequate standards of punishment for offending involved in this case. The Director referred to several factors which pointed to the objective seriousness of the offending, namely that:
·there was an inherent power imbalance between the respondent and the victim arising from the disparity in their ages;
·the respondent engaged in a significant level of grooming of the victim;
·the supply of cannabis to the victim resulted in an alarming increase in daily cannabis consumption, which increased her vulnerability and dependence on the respondent, and should therefore be classed as a serious aggravating feature;
·the respondent was aware of the victim’s vulnerabilities, such as her eating disorder, health issues, and family situation;
·the offending was prolonged and it was not the respondent who chose to cease contact, but the victim;
·many sexual acts took place while the victim was intoxicated, clearly indicative of a level of exploitation;
·many sexual acts were photographed and the respondent threatened to release those photos;
·the respondent exploited and manipulated the victim, and abused the trust she placed in him;
·the actual harm experienced by the victim, and the short-term and long-term consequences of the offending on her in the future; and
·the broader harm caused to the community by sexual offending against children.
In respect of Count 2, the Director submitted that a starting point of 12 months imprisonment was also manifestly inadequate. The maximum penalty for the offence is life imprisonment.[6] The purpose of the provisions was to protect children from predatory adults.
[6] Controlled Substances Act 1984 (SA) s 33F.
The sentence, the Director submitted, needed to reflect the seriousness of it occurring in the context of prolonged sexual offending. Count 1 and Count 2 were inextricably linked: it was the supply of cannabis that induced the victim into the unlawful relationship the subject of Count 1. The respondent’s conduct was not an isolated event.
The respondent’s submissions
In respect of Count 1, the respondent submitted that the sentencing Judge had rightfully characterised the offending as “very serious”. The sentencing Judge, the respondent submitted, did not ignore the standard in R v D nor did she wrongly misconstrue that it applies exclusively to situations where the position of trust is a formal one. The respondent submitted that:
·the respondent could not be characterised as the “dominant actor and the moving force”;
·the respondent did not initiate his first sexual encounter with the victim against her reluctance;
·the respondent did not exploit his imbalance of power in a predatory and calculated way in order to procure his first sexual encounter with the victim;
·the power imbalance was not “structural”, in that the victim was not dependent on the respondent to provide her a basic need; and
·there was not a formal relationship of trust.
The respondent submitted that although the sentence may be described as being at the lower end of sentences for offences of this type, it could not be seen as disproportionately low.
In respect of Count 2, the respondent submitted that the nature of the controlled substance, namely cannabis, was an important consideration. Cannabis is not regarded as harmful to the same extent as other controlled substances. Although the supply was not an isolated act, the respondent was only charged with one offence. While the sentence could be regarded as at the lower end of the range, it was not manifestly inadequate.
Discussion
The sentencing guidelines for the offence of maintaining an unlawful sexual relationship with a child were established by this Court in R v D. In R v D, Doyle CJ said:[7]
[7] R v D (1997) 69 SASR 413 at 423-424.
This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. By this I mean cases involving a course of conduct including sexual intercourse with a child, and committed by a person in a position of trust and authority.
…
Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.
It appears that the sexual abuse of children by persons in a position of trust is quite widespread. It may not be occurring more often than it did in the past. It may well be that it is now being detected more often than it was. Be that as it may, the offences that are involved come before the courts with disturbing frequency. It is for those reasons that I consider that the court should increase, to a moderate degree, the level of penalty imposed for such offences.
I also consider, upon reflection, that there is a need to reflect more clearly the fact that the maximum sentence for unlawful sexual intercourse with children under 12 years of age is life imprisonment. In some of the cases referred to, no real distinction seems to be drawn, in terms of penalty, between such cases and cases of children over 12 years of age. That distinction is not to be achieved by reducing the penalty for offences in the latter category. To reduce sentences in such cases would not be to maintain an adequate standard of punishment. The distinction should be reflected by increasing the penalty in the case of offences involving children under 12 years of age, so that such cases attract a heavier penalty than cases involving children over 12 years of age.
Of course, the court must also consider the circumstances of the offender. As I have already said, cases such as this are truly tragic, because the offender is often a person of otherwise good character. The effects of imprisonment upon such a person are likely to be most adverse, but the need remains for the court to do what it can to protect children against such persons.
…
In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.
When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment.
The relevance of the judgment in R v D in relation to sentencing of child sex offences generally was discussed by Kourakis CJ in Warner v The King,[8] where he observed:[9]
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.
[8] [2022] SASCA 142.
[9] Warner v The King [2022] SASCA 142 at [19]-[20].
In R v Lian, Kourakis CJ (Lovell and Doyle JJA agreeing) stated:[10]
The sentencing standard in R v D applies directly to offending, including unlawful sexual intercourse, with a child committed by a person in a position of trust.[11] Holding a position of trust is an aggravating circumstance. Sentences for sexual offending against children attended by an aggravating circumstance of that kind cannot be any more severe than is proportionate to the gravity of the aggravating circumstance. It follows that the establishment of a standard for sexual offences against children, when the offence is attended by that aggravating circumstance, necessarily effected an increase in the appropriate range for all sexual offending by adults against children.
Moreover, it has long been accepted that sentences for sexual offending against children must be calculated to protect children, who are by reason of their age, naïve and vulnerable, from the predations of adults. Children are easily influenced and have only a limited understanding of the nature, consequences and, in particular, risks of sexual relationships with adults. In R v Williams, King CJ explained the policy of the law in sentencing adults who have committed sexual offences against youth in broad terms, unlimited by the particular position held by the offender:[12]
The law which prohibits sexual intercourse with young girls exists in order to protect young girls from their own inclinations, until they have reached a sufficient degree of maturity in life to make sensible and responsible decisions as to their own lives. It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advantage of the sexual inclinations of young girls.
[10] R v Lian [2023] SASCA 122 (“Lian”) at [98]-[99].
[11] Warner v The King [2022] SASCA 142 at [118] (Doyle JA).
[12] R v Williams (1990) 53 SASR 253 at 254.
The principles set out in the decision of the Supreme Court of Canada in R v Friesen[13] were adopted in Lian.
[13] [2020] 1 SCR 424.
In R v Dyett,[14] this Court observed that some sexual offenders occupy positions which may be described as an ‘informal’ position of trust because of the influence they exercise over their victims. There are not always clear, bright lines delineating formal positions of trust from informal ones, or from the offending of other adults who opportunistically take advantage of the naivete of youth.
[14] [2023] SASCA 41.
The guidelines given in R v D were calculated to protect children from the long-term suffering caused by the sexual offending against them by adults. The guidelines must remain the focus of sentencing all such offenders. The nature and degree of the power imbalance between them, the upper end of which is the subject of the standard set out in R v D, will affect the relative severity of the sentences for sexual offending against children generally.[15]
[15] R v Lian [2023] SASCA 122 at [101].
Turning to Count 1, the sentence imposed is clearly manifestly inadequate. The offending was protracted and the age difference between the respondent and the victim is significant.
Many sexual acts took place while the victim was intoxicated, which clearly indicates the level of exploitation. Further, some sexual acts were photographed, and the respondent threatened to release those photographs.
We reject the respondent’s submissions about his conduct. The respondent groomed the victim and took advantage of her addiction to cannabis. It is not to the point whether the victim was ‘reluctant’. The law exists to protect young persons until they have reached a sufficient degree of maturity in life to make sensible and responsible decisions as to their own lives. We accept the Director’s submissions that the victim’s addiction to cannabis is highly relevant to the offending on Count 1.
Turning to Count 2, care must be taken not to punish the respondent twice for the same conduct. He was charged with only one count of supplying cannabis albeit against the background of other acts of supplying cannabis. Given the relevance of the supply of cannabis to the sentence on Count 1, we do not consider the sentence imposed on Count 2 to be manifestly inadequate.
Should permission to appeal be granted?
Whether to grant the prosecution permission to appeal against a sentence involves a balancing exercise. The prosecution 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 bring the administration of justice into disrepute.
The court must be persuaded that the public interest in maintaining appropriate sentencing standards justifies appellate intervention, notwithstanding the hardship to a defendant associated with the principle of double jeopardy; namely, being twice vexed by the repeated exercise of the State’s coercive power. It is during this balancing exercise that consideration must be given to whether it is a ‘rare and exceptional’ case.[16]
[16] R v Kelly [2023] SASCA 22 (Lovell JA); R v Lian [2023] SASCA 122 at [118] (Kourakis CJ).
However, as King CJ in R v Drewett[17] observed, even great disparity between the sentence imposed and the sentence which the appellate court would regard as appropriate, does not of itself justify allowing a prosecution appeal. The principle of double jeopardy means that both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate.
[17] (1983) 35 SASR 344.
In our opinion, given the significance of the error, there are strong reasons of public policy justifying appellate intervention. To allow the sentence to stand would undermine the administration of justice. We would grant permission to appeal the sentence on Count 1.
The residual discretion
The respondent argued that on a prosecution appeal against sentence there exists a “residual discretion” conferred on the court that would allow the court to grant permission to the prosecution to appeal, find that there was a material error but nonetheless dismiss the appeal. The appellant denied the existence of the “residual discretion.” Whether such a discretion exists is yet to be settled in this Court.[18]
[18] R v Yaroslavceff [2022] SASCA 123 at [33]-[34].
Whether a residual discretion exists depends upon the statutory construction of relevant provisions of the Criminal Procedure Act 1921 (SA) (“the Act”). The provisions conferring and governing jurisdiction of the court in prosecution appeals against sentence are sections 150, 157(1)(a)(iii), (2) and 158(7) and (8) (“the provisions”) of the Act.
Section 150 of the Act relevantly provides:
150—Appeal against sentence
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a) impose the sentence that should have been imposed in the first instance; and
(b) order that the sentence—
(i)will be taken to have come into effect on a date before the date of the order; or
(ii)will take effect on a date on or after the date of the order.
(emphasis added)
Sections 157(1)(a)(iii) and 157(2) relevantly provide:
157—Right of appeal in criminal cases
(1) Appeals lie to the Court of Appeal as follows:
(a) if a person is convicted on information—
…
(iii)subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Court of Appeal;
(2) If a convicted person is granted permission to appeal under subsection (1)(a)(iii), the Director of Public Prosecutions may appeal under that subparagraph without the need to obtain the permission of the Court of Appeal.
Sections 158(7) and (8) relevantly provide:
158—Determination of appeals in order cases
…
(7) Subject to subsection (8), on appeal against sentence, the Court of Appeal must—
(a) if it thinks that the sentence is affected by error such that the defendant should be re-sentenced—
(i)quash the sentence passed at the trial and substitute such other sentence Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for re-sentencing; or
(b) in any other case—dismiss the appeal.
(8) The Court of Appeal must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
(emphasis added)
The text of the provisions, read together, provide:
·a conditional right conferred on the Crown to appeal against sentence upon a grant of permission to appeal;
·an unconditional right conferred on the Crown to appeal against sentence, where a defendant has already been granted permission to appeal;
·dispositive powers conferred on this Court to quash a sentence and either resentence itself or remit the matter for resentence where there is material error; and
·a command that, where permission to appeal has been granted and the court is satisfied on an appeal that its dispositive powers should be used, any sentence imposed on resentencing should be the one that should have been imposed in the first instance, subject to s 158(8).
The parties’ contentions in relation to these interpretations are outlined below.
The respondent’s submissions
The respondent submitted that the court has discretion to dismiss a Crown sentence appeal even if permission to appeal is granted. That is, the court must engage in a two-stage process. First the court must consider whether to grant the Director’s application for permission to appeal against a sentence, and secondly, whether to dismiss the appeal in exercise of the residual discretion.
The respondent argued that the residual discretion arises on a proper construction of the provisions and can be inferred from the statements “if on an appeal against sentence the court is satisfied that the sentence should be quashed…” and “if it thinks that the sentence is affected by error such that the defendant should be resentenced…” The text of s 150 bears a meaning which imports a stage of “satisfaction”, and the text of s 158(7)(a) a stage of “thinking”. That is to say, the court may find error in the sentence (and grant permission to appeal) but fall short of satisfaction that the error is such that the defendant should be resentenced. The court must, having granted permission to appeal, assess the materiality of the sentencing error.
The respondent submitted this approach is consistent with the observations in Kentwell v The Queen,[19] where it was noted that not all errors in the sentencing of offenders vitiate the exercise of the sentencer’s discretion.[20]
[19] (2014) 252 CLR 601.
[20] Kentwell v The Queen (2014) 252 CLR 601 at [42].
The respondent submitted that the interpretation of s 158(7) is a separate question to the interpretation of the provisions relating to the question of permission to appeal and should be interpreted accordingly.
Section 158, the respondent submitted, should be read in accordance with the principle of legality. The principle of legality, as explained in Lacey v Attorney‑General (Qld),[21] is the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities.[22] The respondent submitted that the concept of double jeopardy is one such right that should not be interfered with, as it is a fundamental principle of the common law. It follows, in the respondent’s submission, that in accordance with the principle of legality, an interpretation of the provisions which erodes protection against double jeopardy should not be preferred.
[21] (2011) 242 CLR 573.
[22] Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [43], citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 (McHugh, Gummow, Kirby and Hayne JJ).
The appellant’s submissions
The Director submitted that the proper construction of the provisions enabling and governing Crown appeals against sentence in South Australia demonstrates that no residual discretion to dismiss a prosecution appeal exists once the court is satisfied that permission to appeal should be granted and that a material error affecting the sentence exists.
The starting point, the Director submitted, is that to give proper effect to the statutory context and purpose to the legislative provisions, s 150 and s 158(7) of the Act should be read together along with the balance of the provisions in Part 6A of the Act.
The Director submitted that s 150 and s 158(7) are expressed in mandatory terms. Section 158(7) states that the Court of Appeal must, if it thinks the sentence is affected by error such that the defendant should be re-sentenced, either embark on resentencing itself or remit the matter to the court of trial for resentence. Section 150 states that if the court is satisfied that the sentence should be quashed, it must impose the sentence that should have been imposed in the first instance.
The Director acknowledged that the Crown must still, in every application for permission to appeal against sentence, satisfy the court that the case is rare and exceptional. The meaning of the phrase “rare and exceptional” was discussed recently in R v Ametovic.[23] It is when dealing with the question of permission that the issue of double jeopardy arises for consideration. The court ignores the issue of double jeopardy when considering resentence. As White J observed in R v Harkin: [24]
… It is in the re-sentencing that the Court is to ignore any considerations arising from the law’s aversion to double jeopardy and to impose the sentence which should have been imposed at first instance.
[23] [2024] SASCA 153.
[24] (2011) 109 SASR 334 at [105] (White J); at [30]-[37] (Gray and Sulan JJ).
The discretionary issues of double jeopardy are confined to the permission stage only thus excluding any suggestion that a residual discretion exists.
The Director submitted that, properly construed, s 158(7) and s 150 confer a duty on the court to resentence once material error is established and a grant of permission given. There is no room for the operation of a “residual discretion”.
To support his argument the Director relied upon on the Parliamentary materials accompanying the Bill inserting s 150 into the Act.[25] These materials, he submitted, supported the submission that there was no intention to alter the then known principles regarding the principles of double jeopardy and permission to appeal.
[25] As s 340 of the Criminal Law Consolidation Act 1935 (SA).
The Director also submitted that the cross-appeal power conferred by s 157(2) of the Act acts as a further contextual indicator that issues of double jeopardy are confined to the permission stage only. That is, in the Director’s submission, s 157(2) confers a right to appeal not contingent upon permission to appeal being obtained. If a defendant obtains permission to appeal the Director may cross-appeal and “all errors will then be up for scrutiny”.[26] In such circumstances, there is no room for the residual discretion.
[26] Hansard, House of Assembly, 28 November 2012, page 3953 (Hon JR Rau).
The Director submitted that the respondent’s submission fails to give weight to the context and purpose of the provisions. To construe the provisions in the manner suggested by the respondent means that before consideration can be given to the “residual discretion”, the court must have already found that the case was “rare and exceptional”, that permission should be granted and that both s 150 and s 158 (7) of the Act are engaged.
The Director submitted that any words in the provisions suggesting a threshold of “materiality” should be read as indicating that material errors are required to be fixed where a grant of permission has been given. The principle of legality does not arise in a reading of s 150, as the protection against double jeopardy would not be eroded simply by the absence of a residual discretion. This protection would remain embedded into the considerations at the permission stage.
Further, the Director submitted that the residual discretion would not have any meaningful work to do given the content of the permission stage; the Director did not consider there to be any factual circumstances in which the residual discretion would be engaged.
Discussion
Appeals are creatures of statute,[27] with the jurisdiction of an appellate court governed by statutory provisions. The provisions of the Act are to be construed by reference to ordinary principles of statutory construction.[28]
[27] Fox v Percy (2003) 214 CLR 118 at [20].
[28] The Queen v A2 (2019) 269 CLR 507 at [52].
In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose. That is, the process begins with the text but, as the meaning of words can never be acontextual, the process must also begin by examining the context.[29] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[30] Context, in its widest sense, and the purpose of the statute, inform the interpretative task throughout.[31] Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[32]
[29] The Queen v A2 (2019) 269 CLR 507 at [163] (Edelman J), citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) CLR 355 at [69].
[30] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[31] The Queen v A2 (2019) 269 CLR 507 at [124] (Bell and Gageler JJ, in the minority on the result).
[32] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
Where there are two competing constructions, the construction that should be preferred is that which gives each provision “…the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme”.[33]
[33] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [70].
The issue of interpretation in the present case turns on the construction of s 150 and s 158(7)(a) and their interrelationship. Starting with the text of the provisions, we accept that there are two possible readings. There is a potential textual reading which imports a discretionary power on the court, in which it is to “think” whether the sentencing error is of a sufficient materiality such that the outcome must be resentencing. Equally, there is a textual reading whereby the only consideration for the court in determining whether to interfere in the sentence is whether permission to appeal has (or has not) been granted.
It is necessary, then, to turn to the context and purpose of the provisions to determine which interpretation should be preferred. It is permissible to have regard to the second reading speech.[34]
[34] Legislation Interpretation Act 2021 (SA) s 16(1)(a).
Section 150 of the Act was inserted by the Criminal Law Consolidation (Double Jeopardy) Amendment Bill 2008.[35] In the second reading speech for that Bill, the Attorney-General said:[36]
It is intolerable that prosecution appeals against sentence fail although the Court is of the opinion that the sentence is inadequate. Although there can be no question of a court’s micro adjusting sentences on appeal, equally, courts of appeal should not be affirming inadequate or erroneous sentences. The Bill therefore provides that, when a court is considering a prosecution appeal against sentence, no principle of sentencing double jeopardy should be taken into consideration by the court when determining whether to exercise its discretion to impose a different sentence, or in determining what sentence to impose.
This correction will not affect underlying principles that say:
·that prosecution appeals against sentence should be rare;
·that an appeal court will only intervene where error is shown; and
·that the court has a discretion to refuse to intervene even if error is established or to substitute a discounted sentence where re-sentencing does occur.
(emphasis added)
[35] As s 340 of the Criminal Law Consolidation Act 1935 (SA).
[36] Hansard, House of Assembly, 13 February 2008, page 2040 (Hon MJ Atkinson).
This passage supports the Director’s contention that the principle of double jeopardy is confined to considerations at the permission stage. Additionally, during the course of debate in the Legislative Council, the following observations were added:[37]
The policy of the government on this point is clear, and it is that there is not a question of double jeopardy here nor should the sentence be discounted. The court on prosecution appeals against sentence will interfere with the original sentence only in exceptional cases. It will interfere when there is some point of principle; it will interfere where there is manifest adequacy; and it will interfere where the sentence is such as to shock the public conscience. These criteria are well established.
Once that initial threshold is reached, there should be no question of discount just because it happens to be on appeal. While the policy is clear, the way to deal with it in statutory words without unintended or unenforceable consequences is not so clear. There are no successful models to follow.
(emphasis added)
[37] Hansard, Legislative Council, 9 April 2008, page 2370 (Hon P Holloway).
Again, the above passage confirms that what was intended in the introduction of s 150 was not for the court to engage in additional considerations of double jeopardy. It also clearly supports the conclusion that there is a duty for the appellate court to interfere in manifestly inadequate sentences. Having regard to the purpose of s 150 as explicated in the Parliamentary record, we accept that what was intended was an obligation on the court to correct a sentence if it has been tarnished by material error. Upon a grant of permission to appeal, the appeal court does not consider whether it wishes to intervene: if an error has been established, then it is its role to do so. The respondent’s interpretation requires a reading incompatible with the purpose of the legislation. The Director’s interpretation should be preferred as it aligns with the manifest intention of the provisions.
It is necessary, for completeness, to consider the materiality threshold which the respondent has proposed is imposed by the phrase “if it thinks that the sentence is affected by error such that the defendant should be resentenced”. We do not accept that the existence of some materiality threshold (or indeed some requirement of the court to “think”) necessarily reveals a residual discretion. Instead, as was put by the Director, it simply reflects the broader nature of the sentencing discretion. That there is to be an evaluation of the materiality of an error does not confer a discretionary function. It in fact aligns with the very purpose of the provisions to identify, and then correct, error.
Assuming for present purposes that the court must, at the second stage, consider the materiality of the error, it is difficult to envision a sentencing error which would satisfy the first stage and fall short at the second. The process which the respondent has submitted the court must engage in to determine whether to exercise the residual discretion is really the same as it engages in when determining whether to grant permission. The principles governing permission to appeal have already been traversed in these reasons. If the court has concluded from its balancing exercise that the appeal should not be allowed, then the court would not grant permission to appeal, and there would be no need to go further and exercise a residual discretion. For the discretion to be enlivened, the court would have to make a different conclusion at the second stage to the first, despite having considered identical factors at both stages. The respondent was unable to illustrate any scenarios where this discretion would have work to do. The residual discretion has, in effect, no content.
In any event, having regard to the context and purpose of the Act, we are satisfied that the Director’s interpretation of the provisions is the preferred one. We find that the Act does not confer a residual discretion on the court to dismiss an appeal against sentence when permission to appeal has been granted.
Having granted permission to appeal on Count 1, this Court must intervene in the manifestly inadequate sentence.
Resentencing
We accept the Director’s submissions on the objective seriousness of the offending, referred to earlier. The offending was protracted and serious. There is a significant age disparity between EH and the respondent. There was an element of grooming and also the background of cannabis. The respondent threatened to release photographs of the victim. We have also had regard to the effect the offending has had on EH.
We have taken into account the respondent’s personal circumstances and in particular, the fact that he suffers from various psychological conditions.
We have had regard to the guidelines set out in R v D.
In respect of the offence of maintaining an unlawful sexual relationship, we impose a head sentence of 12 years imprisonment. The penalty on Count 2 remains 12 months imprisonment. In the circumstances where cannabis features in Count 1, care must be taken not to punish the respondent twice for the same conduct.
We would order that six months of the imprisonment imposed on Count 2 be served concurrently with the penalty on Count 1. That leaves a final sentence of 12 years and six months imprisonment. That is discounted by five per cent on account of the respondent’s guilty plea, leaving a final sentence of 11 years, four months and 25 days. We fix a non-parole period of six years and 10 months.
The head sentence and non-parole period are to run from the day the respondent was taken into custody.
Order
Our orders are as follows:
1.Permission to appeal is granted.
2.The appeal is allowed.
3.The sentence is set aside.
4.The respondent is resentenced to a head sentence of 11 years, four months, and 25 days with a non-parole period of six years, 10 months. The sentence is to be backdated from the date the respondent was taken into custody.
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