R v Butler - [2022] SASCA 112

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v BUTLER (A PSEUDONYM)
[2022] SASCA 112
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)
27 October 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The respondent pleaded guilty to two counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). On 25 March 2022, the respondent was sentenced to a good behaviour bond pursuant to s 97(1) of the Sentencing Act 2017 (SA) with the recording of a conviction and without any other penalty.
By Notice of Appeal filed 8 April 2022, the Director of Public Prosecutions (SA) sought permission to appeal against the respondent’s sentence on the sole ground that the sentence was manifestly inadequate.
The applicant alleged that the respondent’s offending was so serious that the only penalty that could have been justified was a term of imprisonment, in circumstances where a suspended term of imprisonment and a home detention order were not available sentencing options. The respondent contended that no express error had been made by the sentencing judge and emphasised the mitigating circumstances.
Held (Lovell JA) refusing permission to appeal:
1.While the sentence imposed was unreasonable and plainly wrong, in the circumstances, considerations of public policy do not require intervention by this Court.

Held (David JA and Mazza AJA) granting the Director permission to appeal, allowing the appeal and resentencing the respondent:
1.Notwithstanding the public interest in ensuring that the respondent is not twice vexed, the seriousness of the offending means that strong considerations of public policy require the Court’s intervention.
2.Despite the mitigating circumstances of the respondent’s offending and his favourable personal circumstances, no penalty other than imprisonment was justified.
3.The sentence imposed in the District Court was unreasonable and plainly unjust.
4.The order imposing the good behaviour bond is set aside. The respondent is re-sentenced to imprisonment for three years with a non-parole period of 18 months.

Criminal Law Consolidation Act 1935 (SA) ss 49, 50; Sentencing Act 2017 (SA) ss 3, 4, 9, 10, 11, 71, 96, 97; Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA); Statutes Amendment (Child Sex Offences) Act 2022 (SA) s 7; Criminal Procedure Act 1921 (SA) s 150(a), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Evans v The Queen [2019] SASCFC 145; Everett v The Queen (1994) 181 CLR 295; Glade v The Queen [2020] SASCFC 83; Green v The Queen (2011) 244 CLR 462; House v The King (1936) 55 CLR 499; McManus v Police [2019] SASC 206; R v Buttigieg (2020) 352 FLR 170; R v Camarinha [2018] SASCFC 118; R v Harkin (2011) 109 SASR 334; R v Jackson [2014] SASCFC 101; R v Jones [2022] SASCA 105; R v Kong (2013) 115 SASR 425; R v Lomas & Symmons [2005] SASC 435; R v Mackay [2019] SASCFC 45; R v McIntosh [2017] SASCFC 87; R v MJJ (2013) 117 SASR 81; R v Nemer (2013) 87 SASR 168; R v Peet [2018] SASCFC 91; R v Petrovski [2005] SASC 330; R v Smith (2007) 97 SASR 302; R v Yousef (2005) 155 A Crim R 134, considered.

R v BUTLER (A PSEUDONYM)
[2022] SASCA 112
Court of Appeal – Criminal: Lovell and David JJA and Mazza AJA

LOVELL JA: For the reasons given by David JJA and Mazza AJA, the decision of the sentencing Judge to impose a bond pursuant to s 97(1) of the Sentencing Act 2017 (SA) (the Sentencing Act) for the offending was unreasonable and plainly wrong. The ground of appeal is made out.
The primary purpose of appeals against sentence by the Director of Public Prosecutions (the DPP) is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. However, the question of permission to appeal involves issues ranging beyond those involved in the merits of the appeal. The common law principle of double jeopardy applies in respect of an application by the DPP for permission to appeal. Circumstances may combine to produce injustice if a prosecution appeal is allowed. A court can in such circumstances refuse permission to appeal and therefore prevent a person being twice vexed by the repeated exercise of the coercive power of the State.[1]
[1] Green v The Queen [2011] HCA 49; R v Buttigieg [2020] SASCFC 38.
In a case where an offender has been given a non-custodial or suspended sentence of imprisonment, an appellate court should be “reluctant to interfere and impose a sentence of immediate imprisonment”.[2] As King CJ observed in R v Hicks:[3]
When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.
[2] R v M, H (2007) 168 A Crim R 557 at [18].
[3] (1987) 45 SASR 270 at 273.
A prosecution appeal against a non-custodial sentence or a suspension of a term of imprisonment should be approached with great care and the rare and exceptional test should be rigorously applied.[4]
[4] R v M, H (2007) 168 A Crim R 557 at [19]; R v Buttigieg [2020] SASCFC 38 at [39].
The respondent was sentenced on 25 March 2022, but the appeal was not heard until 13 October 2022; a period of almost seven months. It will be a period of over seven months by the time judgment is delivered. While no explanation has been provided for the delay, no blame can be attached to the respondent. At the time of the offending the respondent was suffering from Persistent Depressive Disorder. In relation to his mental health the respondent, since his arrest, has received treatment from a psychologist in addition to taking prescribed medication. Both have been of assistance. Mr Balfour, a forensic psychologist, considered that the respondent presented a low risk of reoffending. Since sentence was imposed, the respondent has commenced the Owenia House programme for sexual offenders. He was unable to access this programme until he was sentenced. Over the seven months since sentence, the respondent has continued his efforts at rehabilitation. The delay in the hearing of the appeal and the progress of the respondent’s rehabilitation are relevant factors when considering the question of whether permission to appeal should be granted.
The purpose of a prosecution appeal is not simply to overturn an erroneous sentence and increase the penalty. A wider purpose is to achieve consistency in sentencing and the establishment of sentencing principles. This wider purpose is achieved in this case by the decision of this Court and its reasons that establish the sentence imposed was wrong and why. This decision will affect future sentencing for similar offending.[5]
[5] R v Borkowski (2009) 195 A Crim R 1 at [70].
There is a tension between the public expectation that an offender will be sentenced appropriately for his conduct and the principle of double jeopardy. Taking all the circumstances of this matter into account, I consider that to grant permission to appeal would come at “too high a cost in terms of justice to the individual”.[6] I do not consider that the public policy considerations outweigh the cost of the respondent being twice vexed by the coercive power of the State.
[6] Green v The Queen (2011) 244 CLR 462 at [43] (per French CJ, Crennan and Kiefel JJ).
I would refuse permission to appeal.
Given the majority of the Court would grant permission and allow the appeal, I indicate that I agree with the sentence proposed.
DAVID JA AND MAZZA AJA:
This is an appeal by the Director of Public Prosecutions (the DPP) against sentence.
The respondent was convicted on his pleas of guilty of two counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).[7] The Crown accepted these pleas in full satisfaction of the Information, the respondent having also been charged with maintaining an unlawful sexual relationship with a child.[8]
[7] Counts 2 and 3 on the Information.
[8] Count 1 on the Information, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
On 25 March 2022, the learned sentencing judge sentenced the respondent to a good behaviour bond pursuant to s 97(1) of the Sentencing Act 2017 (SA) (the Sentencing Act) with the recording of a conviction and without imposing any other penalty. His Honour ordered that the period of the good behaviour bond be 24 months and be subject to conditions that the respondent:
(a)be supervised by a Community Corrections Officer for a period of 18 months and obey all reasonable directions as to counselling, therapy and any recommended programs; and
(b)be called up for sentence if he fails to comply with a condition of the bond.
The applicant seeks permission to appeal on the sole ground that the sentence was manifestly inadequate. The issue on appeal is whether, having regard to the seriousness of the offending, a term of imprisonment was the only appropriate sentence. If this issue is decided in favour of the applicant, it is common ground that the offence is a “serious sexual offence” for the purposes of ss 71(2)(b)(ii) and 96(3)(ba) of the Sentencing Act. Consequently, any sentence of imprisonment imposed could not be suspended or ordered to be served on home detention.
Background
The facts are not in dispute.
The respondent is almost seven years older than the complainant. In 2014, they met at a sporting club. They became members of the same team, the complainant being the youngest member of the team. They became friends and the respondent would often drive the complainant to and from training. Over time, the friendship developed. The complainant confided in the respondent about matters personal to her. Shortly after the complainant’s 15th birthday, the respondent and the complainant began flirting and sending each other messages of a sexual nature. The content of these messages revealed that the complainant was sexually immature and inexperienced.
In December 2015, the respondent and the complainant kissed for the first time. In 2016, when the complainant was 15, she and the respondent engaged in oral sex of each other and mutual masturbation. In 2016, the relationship ended. The respondent then commenced a relationship with another person who was an adult.
In 2017, the respondent and the complainant resumed sexual communications, even though the respondent was in the relationship referred to above.
In about July 2017, when the complainant was 16 years old and the respondent was 23, they recommenced their sexual relationship involving oral sex and mutual masturbation.
It is not disputed that prior to the commission of the offences, the respondent had been twice told, in effect, to cease the relationship with the complainant.
In August 2017, the respondent and the complainant engaged for the first time in an act of penile-vaginal intercourse at the respondent’s father’s workplace.
In September 2017, the respondent and the complainant again engaged in penile-vaginal intercourse, this time in the respondent’s bedroom.
The sexual relationship ended later in September 2017.
At all relevant times, the respondent was aware of the complainant’s age and that it was illegal to engage in sexual intercourse with her. The offences were committed within weeks of the complainant’s 17th birthday.
No complaint about the offences was made until 6 November 2018.
The victim impact statement
The complainant read aloud her victim impact statement. It is unnecessary to canvas in detail the contents of that statement. The offences have seriously affected her wellbeing and her relationships, particularly with her mother and her friends at the sporting club. She feels betrayed by the respondent and has issues trusting others. The complainant was diagnosed with post-traumatic stress disorder and has had episodes of freezing up and panic attacks. The complainant stated that she had to work incredibly hard over the last few years to regain the positive personal qualities she once had.
The respondent’s background
At the time of the commission of the offences, the respondent was 23 years of age. At the date of sentence, he was 28. He has no prior convictions.
The respondent had, as he described it to clinical psychologist, Mr Richard Balfour, “a good childhood”. He has good relationships with his parents and his brother. He has no issues with drugs or alcohol and has established friendships. He is currently in a de facto relationship. His partner is supportive of him.
The respondent has almost completed a Bachelor of Engineering and was, at the time of sentence, employed on a part-time basis.
Throughout school and university, he has been actively involved in various sports. For some years being involved in the sporting club referred to earlier in these reasons, including as a coach. However, he was not the coach of the team to which he and the respondent belonged.
It is clear from the character references that were provided to his Honour that the respondent is well regarded by his friends.
The sentencing judge was provided with two reports by Mr Balfour dated 14 January 2022 and 30 January 2022. The second report corrected some factual errors contained in the first report. These factual matters did not impact upon the opinions Mr Balfour expressed in his first report. Mr Balfour expressed the following opinions:
(a)The respondent suffers from a persistent depressive disorder.
(b)The respondent does not possess any of the risk factors identified by researchers as predisposing an individual towards offending behaviour.
(c)The respondent does not exhibit any of the behavioural characteristics commonly associated with a paedophilic disorder.
(d)At the time of the offences, the respondent was “socially immature”. Rather than discouraging the complainant’s interest in him and distancing himself from her “he has exploited the victim’s natural developmental sexual curiosity to satisfy his unmet needs for emotional and sexual intimacy. He has succumbed to sexual temptation.”
(e)The respondent was aware of the wrongfulness of his offending behaviour as evident by his conduct in encouraging the complainant to delete their social media communications. Further, the respondent “deferred having penile-vaginal intercourse with her until she was nearly 17 years old because he was concerned about her young age”.
(f)As a consequence of his persistent depressive disorder, the respondent “used his sexuality as a maladaptive coping strategy”.
(g)As a result of being detained in a police holding cell for a day which the respondent found to be a frightening experience, the respondent’s fear of imprisonment could be used as an effective personal deterrent against further offending behaviour.
(h)If the court was empowered to impose home detention imprisonment, he would be a suitable candidate.
(i)Since his arrest on 13 November 2018, the respondent has made “significant progress in rehabilitating himself” and that an immediate term of imprisonment might result in the respondent “losing his current rehabilitative gains”.
(j)With the assistance of a supervised, structured rehabilitation program, the respondent’s “prognosis to cease offending is good”. In support of this conclusion, Mr Balfour cited nine reasons including that the respondent was “very remorseful” and had “exhibited victim empathy”. Mr Balfour recommended that the respondent be referred to the Sexual Behaviour Clinic and the Owenia House Programme.
The sentencing remarks
As the ground of appeal alleges implied or latent error and no error of fact or legal principle, it is unnecessary to summarise the sentencing remarks in great detail. His Honour accurately set out the circumstances of the offending and the respondent’s personal history. It is clear that he had regard to the matters set out in ss 3, 4, 9 and 10 of the Sentencing Act. His Honour complied with the requirements of s 11 of the Sentencing Act.
His Honour found that the respondent was genuinely remorseful for his offending. He acknowledged the respondent’s apology read in open court in the presence of the complainant. His Honour noted that the respondent had no prior convictions and that his involvement in the criminal justice system since being charged has had a salutary effect upon him. His Honour had regard to the respondent’s age and prospects of rehabilitation.
His Honour noted that the prosecution had submitted that the offending was of such seriousness that imprisonment was the only appropriate penalty. On the other hand, defence counsel had urged the sentencing judge to record convictions and discharge the respondent on a good behaviour bond.
While not specifically referred to in the sentencing remarks, it is plain from the sentencing hearing that his Honour was aware that he was statutorily precluded from imposing suspended imprisonment or a home detention order. His Honour accepted the prosecutor’s submission that if a sentence of imprisonment was the only appropriate penalty, it would be wrong to impose a good behaviour bond because the period of imprisonment could not be suspended or made subject to a home detention order.[9]
[9] DCCRM-19-1428 T2-3, 23 February 2022.
His Honour acknowledged the seriousness of the offences committed by the respondent. His Honour said:[10]
The offence of unlawful sexual intercourse is a serious offence which has a maximum penalty of 10 years imprisonment. Some of serious aspects of your offending include the fact that at the time you knew the victim was under the age of consent and you were seven years older than her. The fact that the victim was almost 17, however, does make the offending less serious than if she was younger at the time. The prosecution submitted that, whilst there should be some leniency because of the victim’s age, that would be significantly less because of the background circumstances of your offending.
In that regard, your two offences were not isolated. They were committed against a background of other sexual activity with the victim which commenced when she was 15.
You had been warned about your relationship with her. Those circumstances do reduce leniency when sentencing you for the two offences because the offences were committed by you against a background of sexual activity between the two of you which started when the victim was 15.
[10] AB 169.
His Honour considered that while imprisonment was “one of the sentencing options”, he did not consider it the only justified penalty. While acknowledging that the protection of vulnerable young persons is a paramount consideration, his Honour considered that the respondent’s age, lack of prior convictions, existing protective factors and his future prospects justified the imposition of a bond with conditions as “the best way to protect the safety of the community, both in the present and in the future”. His Honour also considered that the recording of the respondent’s convictions provided “denunciation and censure of [his] conduct” and formed part of the deterrent effect of the sentence.[11]
[11] AB 170.

His Honour concluded that good reasons existed for imposing a good behaviour bond.
Whether it was open to the sentencing judge to impose a good behaviour bond is the issue at the heart of this appeal.
Legal principles
The following legal principles are well established.
It is fundamental to the administration of the criminal law that judges at first instance are to be allowed as much flexibility in sentencing as is consistent with consistency of approach and accords with the statutory regime that applies. An appellate court cannot intervene merely because they would have exercised the sentencing discretion at first instance differently. Appellant intervention can only occur where error of the kind described in House v The King is established.[12] The applicant does not rely on any express or process error. Rather, the applicant alleges an “outcome” error. That is, that having regard to all of the relevant facts and circumstances, the sentence that was imposed was unreasonable or plainly unjust such that error may be inferred.[13] As this Court observed in R v Peet:[14]
In Dinsdale v The Queen Gleeson CJ and Hayne J observed that manifest inadequacy was a statement of conclusion that did not depend upon attribution of error.[15] A sentence was either plainly inadequate or not plainly inadequate. Accepting this, it follows that to determine whether a sentence is or is not plainly inadequate, it is necessary to, in effect, repeat the sentencing task undertaken by the sentencing judge and, doing so, consider whether the sentence imposed by the judge did not lie within the permissible range such that it may be said to be plainly inadequate. Thereafter, if error is established, this being a Crown appeal, the Everett principles, the effect of which is summarized in the passage taken from R v Lean above, must be applied.[16]
[12] House v The King (1936) 55 CLR 499.
[13] House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt, McTiernan JJ).
[14] R v Peet [2018] SASCFC 91, [6] (Kourakis CJ, Doyle and Hinton JJ).
[15] Dinsdale v The Queen (2000) 202 CLR 321, [6].
[16] Everett v The Queen (1994) 181 CLR 295.
Permission to appeal should only be granted with respect to Crown appeals against sentences in cases that are “rare and exceptional”.[17] As Brennan, Deane, Dawson and Gaudron JJ said in Everett v The Queen:[18]
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.
[17] Everett v The Queen (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ).
[18] Everett v The Queen (1994) 181 CLR 295, 299.
A prosecution appeal against the adequacy of a sentence should be approached with great care and the “rare and exceptional” test should be rigorously applied.[19]
[19] R v Buttigieg (2020) 352 FLR 170, [39] (Lovell J, with whom Kourakis and Nicholson JJ agreed).
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 crimes to be corrected; or if a sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or “shock the public conscience”.[20]
[20] R v Nemer (2013) 87 SASR 168, [24] (Doyle CJ); R v Harkin (2011) 109 SASR 334, [19] (Gray and Sulan JJ).
Both error and strong reasons for public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The prosecution must persuade the court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.[21]
[21] R v Jones [2022] SASCA 105, [13] (Lovell and David JJA, Mazza AJA); R v McIntosh [2017] SASCFC 87, [16] (Hinton J, with whom Peek and Nicholson JJ agreed).
The question of permission to appeal involves issues ranging beyond those involved in the merits of the appeal. This is particularly so when the original sentence does not involve the imposition of an immediate term of imprisonment. In R v Kong,[22] the court observed:
The interrelationship between ss 340 and 353 has been considered in R v Harkin. The effect of s 340 is to remove the court’s discretion to have regard to the principle of double jeopardy in sentencing a defendant, once it is decided that permission should be granted to the Director. Gray and Sulan JJ, in a joint judgment, observed that the words of s 340 make it clear that the court is precluded from having regard to the rule relating to double jeopardy when resentencing. However, the rule still applies when considering whether permission to appeal should be granted to the Director. White J, in a separate judgment, agreed that that was the effect of s 340.
(Footnote omitted)
[22] R v Kong (2013) 115 SASR 425, [33] (Kourakis CJ, Sulan and David JJ). See also R v Camarinha [2018] SASCFC 118, [13] (Kourakis CJ, Blue and Lovell JJ).
Applicant’s submissions
The applicant does not allege that the sentencing judge made any express error in the sentencing process. Rather, the applicant alleged that the imposition of a good behaviour bond for the offences committed by the respondent was infected by implied error, that is, that the sentence imposed was, in all of the circumstances, unreasonable or plainly unjust. The applicant submitted, in effect, that notwithstanding the respondent’s favourable personal circumstances, the offending was so serious that the only penalty that could be justified was a term of imprisonment. As a suspended term of imprisonment and a home detention order were not available sentencing options, only a custodial term of imprisonment was appropriate.
In her oral submissions, Ms Cairney, counsel for the applicant, submitted that the seriousness of the offence was demonstrated by:
·The significant age disparity (almost seven years) between the complainant and the respondent. Throughout their relationship, the respondent was aware of the complainant’s age.
·The offending was constituted by penile-vaginal intercourse.
·The offending occurred against the background that the respondent had over a long period of time since the complainant turned 15 (apart from a period in 2016) engaged in all manners of sexual contact, including oral sex and mutual masturbation.
·The offending was not spontaneous or a “one off”. The respondent, in effect, groomed the complainant.
·As the victim impact statement revealed, the offending has had a seriously adverse effect upon the complainant.
·As illustrated by the text messages exchanged between the respondent and the complainant, the complainant was immature and sexually inexperienced.
·The respondent and the complainant were members of the same sporting team. While the respondent was not her coach, she was the youngest member of the team. Over time they became friends and she trusted and confided in him.
·The respondent was warned about the relationship he had developed with the complainant. He was counselled to desist in it. He knew that the offending conduct was unlawful.
·As Mr Balfour stated in his first report,[23] the respondent exploited the complainant’s “natural developmental sexual curiosity” to satisfy “his unmet needs for emotional and sexual intimacy”.
[23] Report of Richard Balfour dated 14 January 2022, AB 43.
The applicant submitted that the sentence imposed fell too far below an appropriate exercise of the sentencing discretion and has the capacity to erode sentencing standards and shake the public confidence. In these circumstances, the requirements of “rare and exceptional” circumstances have been established and this Court’s intervention is required notwithstanding that the respondent has been subject to the good behaviour bond since he was sentenced and that he will be twice vexed by the coercive power of the State.
Respondent’s submissions
Counsel for the respondent, Ms Powell KC, emphasised in her submissions that the sentencing judge made no express error. All of the serious aspects of the respondent’s offending were acknowledged and taken into account.
Ms Powell acknowledged the age gap between the complainant and the respondent. She submitted that it was not so significant having regard to the respondent’s immaturity. She submitted that the complainant was not hesitant or repelled by the respondent’s behaviour.
Ms Powell observed that, while Parliament has stated that where imprisonment is imposed for offences of the kind committed by the respondent it cannot be suspended, Parliament did not go so far as to impose mandatory imprisonment.
Ms Powell emphasised the mitigating circumstances. She referred to statements made in R v Kong,[24] and submitted, in effect, that even if error was demonstrated, permission to appeal should be refused because the respondent has been subject to the good behaviour bond since 25 March 2022. Ms Powell informed the Court (without contest by the applicant) that the respondent has reported every two weeks to the Department for Correctional Services and has otherwise complied with the conditions of the bond. The applicant has not yet commenced a program at the community based Owenia House but is due to do so in the week following the hearing of the appeal.
[24] R v Kong (2013) 115 SASR 425.
Ms Powell submitted that the ground of appeal has not been made out but even if it has, permission to appeal should not be granted.
Discussion
At the time of sentence, the maximum penalty for an offence of unlawful sexual intercourse with a person under the age of 17 years was imprisonment for 10 years.
As a consequence of amendments made in the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA) (the 2019 Amendments) which commenced on 23 May 2019, the sentencing judge was precluded by ss 71(2)(b)(ii) and 96(3)(ba) of the Sentencing Act from imposing a suspended sentence or a home detention order. This is because the respondent was being sentenced as an adult for two counts of a designated “serious sexual offence”, neither of which were committed in the “prescribed circumstances” in ss 71(6) or 96(10) of the Sentencing Act.
Section 10(2)(a) of the Sentencing Act enshrines the principle, long recognised in the criminal law, that imprisonment is the sentencing option of last resort. That is, no other penalty can be justified.[25] A court cannot impose a sentence of imprisonment unless positively satisfied that a sentencing option short of imprisonment is inappropriate.
[25] Glade v The Queen [2020] SASCFC 83, [49] (Livesey J, with whom Kelly and Bleby JJ agreed).
The 2019 Amendments did not go so far as to make a good behaviour bond under s 97 of the Sentencing Act inapplicable to the sentencing of an offender to an offence against s 49 of the CLCA.
The respondent’s offending was serious offending of its kind. The features referred to by counsel for the applicant (summarised at [53] above) in combination make this conclusion patent.
The respondent gained the trust of the complainant through their participation in the sports club while in the same team. She confided in him and became infatuated with him, as he well knew. She was, by virtue of her age and infatuation, vulnerable. The respondent took advantage of this situation. The age difference between them was significant. The respondent’s immaturity was not such as to diminish the significance of this circumstance.
The respondent engaged in behaviour that could fairly be characterised as grooming. Having gained the complainant’s trust, he embarked upon a relationship that involved sexual conduct which included kissing, fondling, oral sex and mutual masturbation. Ultimately, the two acts of penile-vaginal intercourse occurred in August and September 2017. While the respondent cannot be punished for uncharged conduct that preceded the offences, it is behaviour that places the offences in their proper context. The offences cannot be said to have been spontaneous or isolated.
Furthermore, the respondent committed the offences after he was warned to desist from the relationship and knowing that it was unlawful to engage in sexual intercourse with the complainant prior to her 17th birthday.
The respondent is an intelligent man who appreciated the wrongfulness of engaging in sexual intercourse with the respondent but nevertheless went ahead with it. He exploited the complainant for his sexual gratification without apparent thought for her wellbeing.
It is true that the offences were committed within weeks of the complainant’s 17th birthday. This is not an irrelevant sentencing consideration.[26] However, this factor must be considered against the respondent’s clear appreciation that what he was doing was unlawful. Further, the protective purpose of offences against s 49(3) of the CLCA, which we will refer to below, remain even when a child is close to the specified age of 17 years.
[26] R v Jackson [2014] SASCFC 101.
The purpose of the offence under s 49 of the CLCA was explained by Livesey J (as he then was) in Glade v The Queen as follows:[27]
The purposes underlying the offence of unlawful sexual intercourse include protecting young people from predatory conduct by older people,[28] and the adverse physiological and psychological consequences which can often follow.[29]
[27] Glade v The Queen [2020] SASCFC 83, [29] (Livesey J, with whom Kelly and Bleby JJ agreed).
[28] R v Petrovski [2005] SASC 330, [6] (Doyle CJ).
[29] R v Smith (2007) 97 SASR 302, [31] (Gray J, with whom Doyle CJ agreed, Vanstone J contra), a successful Crown appeal against a suspended sentence where the respondent maintained unlawful sexual relationships with two young girls who were about half his age, one of whom became pregnant. The term of imprisonment was increased to five years and 10 months with a non-parole period of two years and six months. The Court declined to suspend the sentence.
Later in his reasons in Glade, his Honour identified an associated purpose underlying the offence as the protection of young people from the consequences of their own immaturity, and not merely to deter older people from taking advantage of, or exploiting, the sexual inclinations of the young. His Honour, correctly in our view, emphasised the importance of general deterrence and the need to protect the young.[30]
[30] Glade v The Queen [2020] SASCFC 83, [31]-[32] (Livesey J, with whom Kelly and Bleby JJ agreed).
Although the complainant did acquiesce in the offences, this did not, in our view, diminish the seriousness of the offending, diminish its seriousness to any significant extent having regard to the age disparity and the respondent’s exploitation of the complainant.[31]
[31] Glade v The Queen [2020] SASCFC 83, [33] (Livesey J, with whom Kelly and Bleby JJ agreed).
As Kourakis CJ said in R v MJJ,[32] the sexual abuse of children calls for a “strongly deterrent sentencing response”. Accordingly, matters personal to an offender, while not irrelevant, will be accorded relatively limited weight.
[32] R v MJJ (2013) 117 SASR 81, [84].
In a similar vein, in Evans v The Queen, Kelly and Parker JJ stated:[33]
This Court has long recognised that it is necessary for courts to impose penalties which protect young people from their own immaturity and from older people prepared to take advantage of their youth and naivety. In these circumstances, the need for personal and general deterrence has often been emphasised.
[33] Evans v The Queen [2019] SASCFC 145, [59] (with whom Stanley J agreed).
A good behaviour bond under s 97 of the Sentencing Act may be imposed if the court “thinks that good reason exists for doing so”. These words are of wide import,[34] but the discretion to impose a good behaviour bond for an offence of unlawful sexual intercourse cannot be exercised in a vacuum without regard to the principles we have just referred to and, in particular, the need to impose strongly deterrent sentences. While good behaviour bonds have been imposed in cases of sexual offending against children,[35] generally speaking, as a matter of fact, the usual sentencing outcome for the offence of unlawful sexual intercourse will be imprisonment. Prior to the 2019 Amendments, leniency by way of a suspended sentence or a home detention order may have been extended,[36] but Parliament has now foreclosed these options, other than in limited circumstances which do not apply to the respondent.
[34] See the discussion in the context of the now repealed s 39 of the Criminal Law (Sentencing) Act 1988 (SA) in R v Yousef (2005) 155 A Crim R 134, [45]-[47] (Sulan and Layton JJ) and [81]-[82] (White J).
[35] See McManus v Police [2019] SASC 206 and R v Lomas & Symmons [2005] SASC 435. Neither of which involved offending which, when all of the circumstances are considered, was as serious as the present case.
[36] See for example, R v Mackay [2019] SASCFC 45.
There were significant mitigating factors in this case, all of which were recognised by his Honour. Not uncommonly, in offences of this type, the respondent was without prior convictions and well regarded by those who know him. While the respondent received the benefit of being of prior good character, this must be seen in the light of his sexual behaviour towards the complainant from the time she turned 15 and his behaviour which is inconsistent with the good qualities recognised by those around him. The respondent was a relatively young offender who is remorseful, in a stable relationship, is unlikely to re-offend and has been substantially rehabilitated. He pleaded guilty, albeit late in the proceedings. However, when weighed against the seriousness of the offending, the need to protect vulnerable children from exploitation, and in order to achieve the sentencing objective of general deterrence, the imposition of a good behaviour bond in this case fell, in our respectful opinion, a long way short of an appropriate penalty. We have concluded that the sentence imposed was not within the ambit of an appropriate exercise of the sentencing discretion. It was not merely lenient but was unreasonable and plainly unjust. Implied error has been established. The ground of appeal has been made out.
Permission to appeal
Before the DPP’s appeal is allowed, the Court must deal with the question of permission to appeal. We have already set out the relevant legal principles which must be applied. This question involves issues ranging beyond those involved in the merits of the appeal. It does not automatically follow from the finding that the sentencing judge’s decision to impose a good behaviour bond was erroneous that permission to appeal will be granted.
The common law principle of double jeopardy continues to apply in this State to an application by the DPP for permission to appeal. As was recognised in R v Kong,[37] there may be circumstances which will produce an injustice if a Crown appeal is allowed even in a case in which the sentence is erroneously lenient.[38] The factors relevant to this issue include the respondent’s personal circumstances, progress towards rehabilitation, and the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild their life. These are just some of the relevant considerations. To release a person to a non-custodial penalty but later reverse it and impose a custodial sentence may produce an injustice.[39] In some circumstances, this would be too high a cost.[40]
[37] Rv Kong (2013) 115 SASR 425.
[38] See Rv Kong (2013) 115 SASR 425, [102] (Kourakis CJ, Sulan and David JJ) and Green v The Queen (2011) 244 CLR 462, [2] (French CJ, Crennan and Kiefel JJ).
[39] R v Jones [2022] SASCA 105, [51] (Lovell and David JJA, Mazza AJA).
[40] R v Kong (2013) 115 SASR 425, [104] (Kourakis CJ, Sulan and David JJ)

The respondent was released on a good behaviour bond on 25 March 2022. The offending took place in 2017 and was first reported in 2018. The respondent pleaded not guilty and there was a considerable delay while he waited for his trial. On the first scheduled day of the trial, the respondent pleaded guilty. He was sentenced on 25 March 2022.
The DPP filed the appeal within time. On 23 May 2022, at the callover of this appeal and in the presence of senior counsel for both parties, the Court set 13 October 2022 as the hearing date. The appeal proceeded on that day.
At the date of the hearing of the appeal, the respondent has been subject to the good behaviour bond for more than six months. He has complied with its obligations. The Court was told that he was due to commence a rehabilitative program in the community pursuant to the bond. Although the respondent was undoubtedly aware of the DPP’s appeal and that there was a possibility that the appeal would be allowed and he would be imprisoned, we do not doubt that it would be a very serious blow to him if he was in fact sent to prison.
Nevertheless, it is a step which in the interests of justice must be taken in this case. The sentence imposed was erroneously lenient and cannot stand. It is necessary in order to maintain proper sentencing standards for offences of unlawful sexual intercourse, which are informed by the need to protect children from exploitation, for the respondent to be resentenced. To allow the good behaviour bond that was imposed in this case to stand would, in our view, shake public confidence in the administration of justice. Thus, strong considerations of public policy require this Court’s intervention even though it will come at the cost of the respondent being twice vexed by the coercive power of the State. Accordingly, permission to appeal must be granted. For the same reasons, we would not exercise any residual discretion (if available) to dismiss the DPP’s appeal.
Permission to appeal is granted and the appeal is allowed.
Resentence
Since the respondent was sentenced on 25 March 2022, Parliament have increased the maximum penalty for unlawful sexual intercourse to imprisonment for 15 years.[41] However, he is to be resentenced having regard to the maximum penalty that applied at the time he was sentenced.[42] We will not repeat the circumstances of the offending or the respondent’s personal circumstances. We have had regard to the sentencing materials that were before the sentencing judge, including the reports of Mr Balfour. Ms Powell also provided additional information concerning the respondent since 25 March 2022 up to the date of the appeal hearing.
[41] Section 7 of the Statutes Amendment (Child Sex Offences) Act 2022 (SA) modified s 49(3) of the Criminal Law Consolidation Act 1935 (SA) to prescribe a maximum penalty of 15 years imprisonment for unlawful sexual intercourse. The amendment came into effect on 1 October 2022.
[42] Criminal Procedure Act 1921 (SA) s 150(a).
For the reasons which we have already explained, the respondent’s offending was very serious and despite the mitigating circumstances, including those personal to the respondent, no other penalty apart from imprisonment was justified. There were also the substantially mitigating factors which were referred to at first instance. These, in combination, must result in some leniency both in respect of the head sentence and the non-parole period.
In respect of each offence, we would fix a head sentence of two years imprisonment. We would reduce each sentence by five per cent for the plea of guilty. Thus, the head sentence on each count is one year, 10 months and 25 days. We would make the sentences partially concurrent. Whilst each offence constitutes a separate incursion into crime, both offences were committed during one ongoing unlawful relationship. Further, the imposition of a term of imprisonment for the first offence affects what is necessary to achieve the deterrent and punitive objectives of the sentence for the second. Applying partial concurrency, we would impose a head sentence of 3 years.
The respondent has not spent any time in custody or on home detention bail. We would impose a non-parole period of 18 months.
As the Court cannot suspend this sentence, nor can the respondent be placed on a home detention order, the sentence of imprisonment we have imposed must be immediately served.
Orders
The orders we would make are:
1.Permission to appeal is granted and the appeal is allowed.
2.The sentence imposed on 25 March 2022 in the District Court is set aside.
3.The respondent is sentenced to imprisonment for a period of three years with a non-parole period of 18 months. The head sentence and non-parole period is to run from the date the respondent is taken into custody.