R v C, M - [2014] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, M
[2014] SASCFC 62
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Bampton)
12 June 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
Appeal against sentence. The defendant pleaded guilty in the District Court to four counts of unlawful sexual intercourse with the one complainant, M. The first two counts concerned acts of digital and penile penetration when M was aged 12 or 13 years. The third and fourth counts alleged an act of penile penetration when the complainant was aged 15 years. The defendant’s conduct breached the terms of a suspended sentence bond in relation to similar offending against M’s sister, J, which had taken place around the same period as the offending against M. The defendant was sentenced 12 years after the offending ceased. The defendant’s relationship with M was known to the Judge and authorities at the time he was sentenced in relation to offending against J, but no action was taken. Since the offending ceased the defendant has totally rehabilitated. The Judge imposed a sentence of imprisonment of six years in respect of all offending against M. The Judge made a reduction of three years on account of the pleas of guilty. The Judge revoked the suspension and ordered that the sentence of imprisonment of six years be cumulative on the revoked suspended sentence of imprisonment of one year and ten months. As a consequence, the defendant faced a total sentence of imprisonment of seven years and ten months. The Judge fixed a non-parole period of four years.
Whether the Judge erred by failing to give adequate weight to the delay between the date of the offending and the date of sentencing. Whether the Judge erred by failing to give adequate weight to the defendant’s rehabilitation. Whether the Judge erred by failing to make the sentences concurrent. Whether the sentence was manifestly excessive.
Held per Gray and Bampton JJ (Peek J agreeing) (allowing the appeal):
(1) The Judge did not have proper regard to or give sufficient weight to the defendant’s rehabilitation and the delay between offending and sentencing.
(2) The Judge erred in making the sentences cumulative and by failing to have regard to the totality principle. The offences were closely related and the sentences should have been made concurrent.
(3) In the circumstances, the sentence was manifestly excessive.
(4) Defendant resentenced to a term of imprisonment of three years and nine months. The suspended sentence is revoked, to be served concurrently. Non-parole period of 18 months fixed.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Barnes v Police [2006] SASC 295; R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; R v Todd [1982] 2 NSWLR 517; Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454; R v R, AW (2012) 113 SASR 179; Duncan v The Queen (1983) 9 A Crim R 354; R v Liang & Li (1995) 82 A Crim R 39; R v Miceli [1998] 4 VR 588; R v V, AJ [2012] SASCFC 10; R v Creed (1985) 37 SASR 566, considered.

R v C, M
[2014] SASCFC 62
Court of Criminal Appeal: Gray, Peek and Bampton JJ
GRAY J.

This is an appeal against sentence.
Introduction
C, the defendant and appellant, pleaded guilty in the District Court to four counts of unlawful sexual intercourse with the one complainant, M. The first two counts concerned offending between October 1996 and October 1998, when M was aged 12 or 13 years. The first count involved an act of digital penetration and the second an act of penile penetration. The third and fourth counts alleged an act of penile penetration when the complainant was aged 15 years. Each of the offences involved a breach of section 49(3) of the Criminal Law Consolidation Act 1935 (SA).
The Judge imposed a sentence of imprisonment of six years in respect of all offending. In determining this sentence, the Judge made a reduction of three years on account of the pleas of guilty. The defendant’s conduct breached the terms of a suspended sentence bond. The Judge revoked the suspension and ordered that the sentence of imprisonment of six years be cumulative on the revoked suspended sentence of imprisonment of one year and ten months. As a consequence, the defendant faced a total sentence of imprisonment of seven years and ten months. The Judge fixed a non-parole period of four years. The sentence commenced on 17 December 2013, the day of sentencing.
On the appeal, counsel for the Director accepted that it was appropriate that fresh evidence be received by this Court. It was acknowledged that this evidence was material and it followed that the sentencing Judge proceeded on an incomplete understanding of the facts. Further, it was acknowledged that the sentencing Judge erred in failing to give adequate weight to the defendant’s rehabilitation during the delay between offending and sentencing and, further, in not addressing issues of concurrency of sentence. These concessions were entirely appropriate. As a consequence, it was accepted that this Court should reconsider the appropriate sentence to be imposed. These matters are discussed more fully below.
There are unusual circumstances surrounding the defendant’s offending that require close consideration. The defendant was born in the Philippines and came with his mother to Australia when aged eight years. His mother remarried following her arrival in Australia. It appears that the defendant met M and her sister, J, at about the time of his 21^st birthday. J was then aged nearly 14 years and M was aged 12 years. J and M were being raised by their mother in a one parent family.
The defendant entered into a sexual relationship with J between January and April 1999 when J was 15 years of age. This relationship led to the defendant being charged with three counts of unlawful sexual intercourse with J. On 24 September 1999, following pleas of guilty, the defendant was sentenced by Herriman DCJ to a term of imprisonment of one year and ten months. A non-parole period of ten months was fixed. The sentence was suspended upon the defendant’s entry into a good behaviour bond. Herriman DCJ when sentencing remarked:
The circumstances in which your offending occurred do you very little credit. You had been seeing the victim’s sister, [M], who, then aged 14 years, was even younger than her sister. Indeed, it appears you had a relationship with [M] prior to these events and have continued it since. However ill-advised that may be, you do not face any charges in connection with [M], and you are not to be sentenced for your association with her.
Both sisters were brought up in a one-parent family after their father died. It is obvious that their mother had great difficulty with them. They were fostered out and it is obvious they have grown up rather too quickly. You met them through a family connection and, surprisingly, it would appear that neither their family, nor yours, had any serious objections to the relationships you formed with either of them.
When suspending the sentence, the Judge further remarked:
In all the circumstances, therefore, I am disposed to suspend your sentence. I will suspend it if you agree to enter into a bond in the sum of $200 to be of good behaviour for three years, and to obey the lawful directions of a probation officer.
You should understand that a bond imposes very serious obligations on you. If you offend in any way, or breach a condition of the bond, you will be brought back to court and there is every chance that you will have to serve the sentence of imprisonment that I have imposed. You should keep that in mind in considering any future relationships you have with young girls.
It is apparent that Herriman DCJ and counsel were aware that the defendant was in an ongoing relationship with J’s younger sister, M, and that this relationship commenced before the offending against J and had continued since that offending. As extracted above, the Judge observed that neither the defendant’s family nor J and M’s family had any serious objection to either relationship and he took into account that irresponsible adults in the family circle gave tacit consent to the relationships.
Fresh evidence tendered before this Court revealed further relevant matters. On 2 October 2000, M’s mother complained to police that M had been in a sexual relationship with the defendant between March and October 2000, that she was aged 15 years and was now pregnant. A preliminary investigation was undertaken and it was determined that follow-up enquiries were warranted. The police incident report of December 2001 summarises the conclusion of the investigation:
I have previously dealt with [M] and [the defendant]. [The defendant] was found guilty of USI with this victim’s older sister [J]. [M] refused to make any statement against [the defendant]. [M] and [the defendant] are now in a defacto relationship at [address] and have a child. Given the facts that this couple wish to remain together and they are currently parenting their child together I do not believe it is in the public interest to pursue this matter. The complainant re this matter was [M’s mother], [M’s mother] does not want the matter pursued as she now has contact with her daughter and grandson and she believes further police involvement would permanently damage that relationship. As a result I suggest you consider filing this matter pending further family developments.
[Emphasis added.]
Nothing further occurred until M complained to the police in March 2012. This led to the laying of an Information containing the four counts to which the defendant has pleaded guilty.
During the period between 2001 and 2012 the defendant has apparently rehabilitated himself. He entered into a long term, permanent relationship with a woman over the age of 18 and has three children by that relationship. At the time of sentencing, the defendant had been in regular employment and had provided for his partner and their children. There is no suggestion that, since his relationship with M ceased, he had engaged in any offending of a similar nature to the offences that are the subject of this appeal. Apart from some minor traffic offending and an offence of dishonesty on which he was released by a Magistrate on a bond, the defendant has been law abiding and a good provider for his family. It was accepted by the Director that the sentence did not need to reflect any component on account of personal deterrence.
The Judge delivered sentencing remarks immediately following the hearing of submissions. During the course of those submissions, particular emphasis was placed on the defendant’s rehabilitation during the 12 years since the last of the offences. The Judge in his remarks makes reference to this fact but did not discuss the relevance or significance of the defendant’s rehabilitation during the lengthy delay between the offending and sentencing.
Sentencing – Significance of Delay and Rehabilitation
Authorities address the circumstance where rehabilitation has occurred during a period of delay prior to sentencing. Those authorities recognise the need to accord fairness to a defendant through weight being given to that rehabilitation. As observed in Barnes v Police:[1]
Given the appellant’s progress made toward rehabilitation in recent times and, in particular, his positive response to the conditions imposed upon him pursuant to the good behaviour bond with respect to the July 2004 offending, I do not consider that immediate imprisonment is appropriate. Immediate imprisonment at this stage in the appellant’s life is likely only to frustrate the rehabilitative progress made to date. This consideration weighs particularly heavily in light of the fact that the appellant committed the subject offence some two years ago, prior to the progress just outlined, and that the appellant has not offended in any way since August 2004.
[Footnote omitted.]
[1] Barnes v Police [2006] SASC 295, [26].
In Law; Ex parte Attorney-General (Qld),[2] it was held that delay will not be a mitigating factor unless it causes unfairness to the offender. Two “obvious” circumstances were discussed in which it would be appropriate for delay to be mitigatory. One circumstance is relevant to the present proceeding and was described in the following terms:[3]
… [W]here the time between commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress. That factor was referred to by Street CJ in Todd [1982] 2 NSWLR 517 at 519, 520 in a passage cited with approval by the High Court in Mill (1988) 166 CLR 59 at 64. See also Bell (1981) 5 A Crim R 347 at 351; Quinlivan (Crt of Crim App Vic No 291 of 1994). Duncan is also an example of this.
[2] R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63, 66, cited with approval in R v Leggett [2000] WASCA 327, [34]-[35]; Thorn v Western Australia [2008] WASCA 36, [37]; R v Lekaj (1997) 92 A Crim R 325.
[3] R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63, 66.
A convenient starting point in relation to delay where rehabilitation has been achieved during that period is the decision of Street CJ in Todd, where the following observations were made:[4]
… Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
[Emphasis added.]
[4] R v Todd [1982] 2 NSWLR 517, 520. These remarks have been approved in a number of subsequent decisions; see, for example, R v Suckling (1983) 33 SASR 133, 136; R v Pickard [2011] SASCFC 134, [21]-[29]; [50], [89]-[100].
In Kernich, Debelle J extracted the observations of Street CJ and remarked:[5]
Those observations were made in circumstances different from these, but they are, nevertheless, relevant. The observations apply with even greater force when there has been an exceptional delay of this kind, and in that period of delay the offender has taken substantial and successful steps towards his own rehabilitation.
[Emphasis added.]
[5] Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454, 459.
The following observation of the Court of Criminal Appeal of Western Australia in Duncan provides a further indication of the importance of rehabilitation in circumstances such as the within matter:[6]
… Where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
[6] Duncan v The Queen (1983) 9 A Crim R 354, 356.
In the Victorian Court of Appeal in Liang & Li, Winneke P, in allowing an appeal and suspending sentences of imprisonment, said: [7]
His Honour has fallen into error in failing to pay any or any sufficient regard to the effects of the delay which occurred between the commission of these offences and the date of the plea and sentence. As I have already indicated, these offences were committed between May and August 1992, yet it was not until April 1995 that the applicants were sentenced. By this stage, as might well have been expected, the circumstances of the applicants had changed significantly. Each applicant had married, each had fathered a child and each had obtained stable employment. That delay, on the material available to the judge, was in no way attributable to the fault of either applicant and provided, in my view, a powerful mitigating factor which does not appear to have been afforded proper weight in the sentencing process.
[Emphasis added.]
[7] R v Liang & Li (1995) 82 A Crim R 39, 45.
In a later Victorian decision in Miceli, Tadgell JA referred to an unnecessary delay of 12 months between the defendant admitting the offence at interview and being charged, and a further delay of 14 months until he was sentenced, in allowing an appeal and suspending the sentence of imprisonment after three months and said:[8]
There is no doubt that proper sentencing principles dictate that undue delay in the disposition of charge should work in favour of a prisoner being sentenced … most particularly is the matter of delay between the commission of an offence and the imposition of a sentence to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life.
[Emphasis added.]
[8] R v Miceli [1998] 4 VR 588, 591.
Since drafting my reasons I have had the benefit of reading the draft reasons of Bampton J, and in particular her reference to the judgment of Doyle CJ in R v V, AJ.[9] I respectfully agree with the Chief Justice’s remarks in R v V, AJ that rehabilitation and the passage of time should not be given “too much weight”.[10] In my opinion, in this case the circumstances of delay, the extraordinary reasons for delay, the change of circumstances of the defendant and his rehabilitation are, to adopt the wording of Winnecke P extracted above, powerful matters of mitigation. I consider that the sentencing Judge did not give these factors proper consideration or weight. These factors alone justify the Court in reconsidering the sentence to be imposed.
[9] R v V, AJ [2012] SASCFC 10.
[10] R v V, AJ [2012] SASCFC 10, [3].
The circumstances of the offending and its relationship to the offending against J dealt with by Herriman DCJ would appear to call for a consideration of concurrency. During the course of sentencing submissions, counsel for the defendant raised the question of concurrency. This topic was not addressed by the Judge.
One course open to Herriman DCJ on becoming aware of the offending against J’s sister was to adjourn the proceeding to enable enquiries to be made and, if appropriate, charges to be laid. Had this occurred, and had charges been laid, Herriman DCJ would have had the responsibility of sentencing the defendant in respect of sexual offending toward J and M in the particularly unusual circumstances in which that occurred. When considering the overall penalty to be imposed, it could be expected that the Judge would have had regard to the totality principle, and, in particular, to issues of concurrency.

In the present appeal, the question arises as to whether, once the suspension is revoked, the sentence imposed by Herriman DCJ should be served wholly or partly concurrently with the sentence to be imposed for the subject offending. In my view, having regard to all the circumstances, the suspension of the sentence should be revoked, but an order should be made that the revoked sentence be served concurrently with the sentence to be imposed in respect of the offending against M.
Resentencing the Defendant
Having regard to the foregoing, I have reached the conclusion that the sentence imposed was manifestly excessive and that errors of sentencing principle occurred that led to this result. In these circumstances, as discussed above, it is necessary for this Court to resentence the defendant.
The defendant’s conduct was serious criminal conduct. Although only a young man himself, he took advantage of M when she was aged 12 and 15 years. The particular counts the subject of his pleas were accepted to be part of an ongoing course of conduct.
The fact of the matter is that, with the apparent concurrence of both families, the defendant and complainant were living together and as a consequence there was a child of the relationship. Issues concerning both M and J could and should have been addressed and resolved in 1999, when the defendant was before Herriman DCJ. That did not occur. There was a further opportunity in October 2000 to address and resolve the matters concerning M, when the police investigation revealed the ongoing nature of the relationship between the defendant and M. This investigation, as noted above, led to the conclusion that it was in the public interest to take no action and as a consequence nothing happened.
For the next 12 years, the defendant set about a process of rehabilitation. He formed a long term relationship as discussed above. He and his partner have three young children as a result. The defendant has been in steady employment and has provided for his partner and children. As discussed in the above authorities, these are powerful mitigating matters. In the words of Street CJ in Todd,[11] they are dominant matters.
[11] R v Todd [1982] 2 NSWLR 517, 520.
Having regard to the foregoing, I would allow the appeal and resentence the defendant. I would impose one sentence of imprisonment of three years and nine months for all offending the subject of the present appeal. In arriving at this sentence, I have made a reduction of one quarter on account of the defendant’s pleas. I would revoke the suspended sentence of imprisonment of one year and ten months and direct that this sentence be served concurrently with the term of imprisonment that I would impose in respect of the subject offending.
The 12 year delay between offending and sentence has led to the defendant’s rehabilitation and, as a consequence, there is no need for the sentence to reflect the need for personal deterrence. These factors have greater weight when fixing the non-parole period and as a consequence I would fix a non-parole period of 18 months. I recognise that this is a merciful non-parole period but consider that the circumstances mentioned above justify such an approach. I would direct that the sentence take effect from 17 December 2013.
PEEK J. I would allow the appeal and impose a head sentence of three years and nine months to be served concurrently with the revoked suspended sentence of one year and 10 months, to commence as from 17 December, 2013. I would fix a non-parole period of 18 months to commence from the same date.
Although there may possibly be some differing nuances of emphasis as between the reasons of Gray J and of Bampton J, for all practical purposes I agree with both sets of reasons.
BAMPTON J: This is an appeal against a sentence imposed by the District Court.
The Offending
C pleaded guilty to four counts of unlawful sexual intercourse committed against M.
The first count of unlawful sexual intercourse, an act of digital penetration, and count 2, an act of penile vaginal intercourse, were committed between 2 October 1996 and 4 October 1998. M turned 12 on 3 October 1996. Count 3, an act of penile vaginal intercourse, was committed between 1 November 1999 and 26 January 2000 when M was 15 and Count 4, an act of penile vaginal intercourse, was committed between 31 May 2000 and 1 August 2000 when M was 15.
C entered pleas of guilty on a full factual basis of the allegations made by M in her statements. C also admitted that his offending breached a suspended sentence bond he had entered into before a District Court Judge in September 1999. The offending underlying that bond was three counts of unlawful sexual intercourse committed against M’s sister, J.
The sentence
The sentencing Judge imposed a single sentence of imprisonment utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). He adopted a starting point of a head sentence of nine years’ imprisonment, which he reduced to six years having regard to C’s pleas of guilty. The Judge noted that the four counts before the Court were representative of a lengthy course of similar offending and that the accused would not be punished for anything other than the charges to which he had pleaded guilty. The Judge revoked the suspended sentence bond, ordered that the sentence of one year and 10 months be carried into effect, and ordered that the sentence he imposed be cumulative upon it. This resulted in a total sentence of seven years and 10 months’ imprisonment. His Honour set a non-parole period of four years, taking into account C’s personal circumstances and the seriousness of his offending.
Fresh evidence
During the hearing of the appeal C’s counsel handed to the Court a Police Incident Report (the Report). It was accepted by Counsel for the Director that the Report should be received by the Court as relevant evidence. The document records a report made by the mother of M and J on 2 October 2000 that M, who was 15 years of age, was in a sexual relationship with C and was pregnant. The Report was not put before the sentencing Judge nor would it appear were counsel aware of it at the time of sentencing submissions.
Concurrency and apparent rehabilitation
C’s counsel asked the Judge during sentencing submissions to order that the sentence he imposed be concurrent with the suspended sentence it was accepted he would revoke. Counsel for the Director acknowledged that the Judge did not refer to the issue of concurrency in the sentence. Counsel for the Director said she could not resist the Court sentencing afresh in these circumstances. She also agreed that it was clear that the weight to be given to personal deterrence is diminished having regard to C’s apparent rehabilitation.
Grounds of appeal
Pursuant to the Court’s permission, C filed “consolidated grounds of appeal” complaining that the head sentence and non-parole period are manifestly excessive and that the sentencing Judge:
·erred by failing to consider the question of concurrency in the revocation of a suspended sentence bond and the sentence for the breaching offence;
·was unaware that the offending had been investigated in 2000 and it was then considered by police that it was not in the public interest to prosecute at the time; and
·gave inadequate weight to his rehabilitation between the offending and the time of sentence when considering the question of personal deterrence.
Background to the offending
The four counts of unlawful sexual intercourse, as noted by the sentencing Judge, were representative of a course of sexual conduct between C and M from when she was aged 12 years until she turned 17. I set out a summary of the relationship between C and M.
M and her sister J met C at his 21^st birthday party when M was 12 and J was 14. The sexual relationship between C and M commenced by C touching M’s upper leg, kissing her neck and breasts and inserting his finger inside her vagina. M told C she did not want to have sex until she was 16. He first had penile vaginal intercourse with her when she was 12 years old.
Following C’s first act of intercourse with M, C engaged in a sexual relationship with J (who was 18 months older than M) between January and April 1999.
During the course of that relationship with J, C started to see M again. He sent love letters to her through her friends at school; he would pick her up from school and take her to his house to have sex and then he would take her back to school in time for her first lessons. Sexual activity between C and M included penile vaginal intercourse, fellatio and anal intercourse. C put pressure on M to have oral sex with him a couple of times a week. M’s statement refers to C “consistently watching porn” depicting men having sex with young girls with titles such as “barely legal” and “just teens”.
At the age of 13 or 14, M started living with C. M recounted that not long after commencing to live with C, he hid her at his aunt’s home when Family Services came looking for her. M tried to break up with C but he would threaten to kill himself and the relationship continued.
M became pregnant when she was 15 years old. In an unsuccessful attempt to abort the pregnancy, M was given tablets and alcohol by C’s family. An ultrasound scan performed at the Pregnancy Advisory Clinic on 20 January 2000 indicated she was approximately eight to nine weeks pregnant. M would have conceived in November 1999, some two months after C entered into the three year good behaviour bond.
On 27 January 2000, M underwent a surgical termination of pregnancy. The sexual relationship continued following the termination and, within a year, M became pregnant again. On this occasion, she did not tell anyone until later in the pregnancy. During Year 10, at seven and a half months pregnant, she left school and gave birth to C’s son in March 2001.
In December 2001, C reunited with her mother and saw this as an opportunity to terminate her relationship with C. She left C, taking the baby and commenced living with her mother. She remained in contact with C for a year thereafter for the sake of their child.
M complained to the police in March 2012. M asserts that the reason she did not report the offending for so long was because both C’s family and her own family pressured her not to report the matter for the sake of her son and as it would risk C being imprisoned.
M’s victim impact statement, which she read to the Court herself, spoke of feelings of manipulation, broken promises, betrayal, pressure and insecurity. She described how she was inveigled into a sexual relationship with C, forced to endure a termination of pregnancy and became a mother well before she was psychologically and emotionally ready. She spoke of her education being dramatically compromised by C who used her schooling hours as an opportunity for sexual activity. She said she still lives with insecurities, anxieties and the knowledge that her child was born of the relationship.
The offending against M’s sister J and the 1999 sentence
In delivering his sentence on 24 September 1999 in relation to the offending against J, the Judge noted that C appeared to be in a relationship with M, who was then aged 14 years. The Judge said:
Indeed, it appears you had a relationship with [M] prior to these events and have continued it since. However ill-advised that may be, you do not face any charges in connection with [M] and you are not to be sentenced for your association with her.
The Judge noted that C had some limited form of remorse for his conduct, although he did not appear to accept that he was fully blameworthy. The Judge said that the psychologist, Dr Balfour, reported that C sought out the company of young women and that:
Clearly you expose yourself to significant risks in doing this, it does not matter whether any of the adults you know appear to take no objection to what is happening.
His Honour also commented that it would appear that neither M’s nor C’s family had any objections to the relationships he formed with M and her sister, J.
His Honour noted that the three counts of unlawful sexual intercourse represented a course of conduct in that he had an ongoing relationship with J between 1 January and 8 April 1999. His Honour said that in all the circumstances, taking into account the fact that the sexual acts were “consensual”, that C was relatively young, that irresponsible adults in C’s family circle gave tacit consent to the relationship, he would suspend the sentence on condition that C agree to enter into a bond to be of good behaviour for three years.
The Judge stressed to C that the bond imposed very serious obligations on him and that if he offended in any way, he would be brought back to the Court and that there was “every chance” he would have to serve the sentence of imprisonment. The Judge warned C that he should keep “that in mind in considering future relationships with young girls”.
The appeal
Evidence not available to the sentencing Judge
As referred to above, the Report was not available to the sentencing Judge. This document, in conjunction with the 1999 sentencing remarks, demonstrates that the police were aware of this matter from at least 1999. At page three of the Report, the following notation dated 22 December 2001 records:
For vetting and consideration by Sergeant Wilburn. I have previously dealt with [M] and [C]. [C] was found guilty of USI with this victim’s older sister ([J]). [M] refused to make any statement against [C]. [M] and [C] are now in a de facto relationship at and have a child. Given the fact this couple wish to remain together and they are currently parenting their child together, I do not believe it is in the public interest to pursue this matter. The complainant re this matter was [S] ([M’s] mother). [S] does not want the matter pursued as she now has contact with her daughter and grandson and she believes further police involvement would permanently damage that relationship. As a result I suggest you consider filing this matter pending further family developments.
The difficulties confronting police and other government agencies in attempting to deal with fraught and highly complex situations where victims and witnesses are reluctant to speak out must be acknowledged. However the objective result of the delay must be taken into account in considering the appropriate sentence for the appellant.
Delay in prosecution and apparent rehabilitation
In this case, the Court released C on a good behaviour bond in 1999 in the knowledge that he was involved in another unlawful relationship. The fact that the Court released him without asking the police to investigate that relationship and that the police of their own accord did not take steps to intervene in 1999 or at the time of M’s mother’s complaint in 2000 are relevant circumstances. The passage of time between the offending and the pleas of guilty and C’s apparent rehabilitation over the intervening years are also circumstances to be taken into in account. The question, as Doyle CJ stated in R v V, AJ,[12] in recognising that these circumstances are entitled to weight, is how much weight should be attributed to them.
[12] [2012] SASCFC 10.
Sexual offending often remains undetected for many years. The prosecution of such offending relies upon the preparedness of the victims of abhorrent offending and witnesses to it to report the abuse.
Arguably, more could and should have been done at the time of the 1999 sentence and during 2000/2001 to terminate the relationship. The fact remains that C was warned and told not to reoffend by the sentencing Judge in 1999, yet he continued the sexual relationship with M. His family were complicit in the unlawful relationship and M was influenced by her family and C’s family not to report the matter. This is not a matter where C co-operated with police and ceased the relationship. He knew the relationship was illegal, yet he continued with it despite the clear threat of the suspended sentence.
Personal circumstances
C was 37 at the time of the sentence. He migrated to Australia with his mother from the Philippines when he was eight. His mother remarried and his stepfather was violent until his mother ended her relationship with him. As the sentencing Judge noted, C had been in constant employment since leaving school. Following the termination of the relationship by M, C appears to have led a relatively law abiding life. At the time of the sentencing submissions, C had been in a relationship with his now partner for six years and they have three daughters aged eight months, five and six years. C is the breadwinner for the family. The sentencing Judge accepted that C was “quite a different man to the man who was involved in committing these offences” and that he had “grown since this offending”.
Other than the present offending and the 1999 conviction in relation to J, C’s only other offending is minor offending and has been dealt with by the Magistrates Court.
Accordingly, I would attribute some weight to the facts that the offending was known to the police from at least the time of the 1999 sentence, that a recommendation was made by a police officer in 2001 that it was not in the public interest to take the matter further, and the passage of time and C’s intervening apparent rehabilitation.
Concurrency with the revoked 1999 suspended sentence
In the unusual circumstances of this case, it is my view that the sentence for the offending against M should have been partially concurrent with the revoked suspended sentence of one year and 10 months’ imprisonment. Had C been sentenced for counts 1 and 2 at the time of the 1999 sentence (noting that counts 3 and 4 were committed after the 1999 sentence), the sentence would have been at least partially concurrent.
In my view, the combination of the circumstances I have referred to in paragraph [56], together with the fact that the sentencing Judge was not aware of the investigation into the offending in 2000 and did not address the question of concurrency, has caused the exercise of the sentencing discretion to miscarry. As a result I would allow the appeal and resentence C.
Resentence
In resentencing C, I would revoke the suspended sentence and order it be carried into effect.
C’s plea to count 3 was entered at committal. The plea to count 4 was entered following a special directions hearing. The pleas to counts 1 and 2 were offered in the days leading up to the commencement of trial.
Using s 18A of the Sentencing Act, the sentence I would impose for the four counts of unlawful sexual intercourse is three years and nine months’ imprisonment reduced by 25 percent from five years on account of the guilty pleas.
I would order that the sentence of three years and nine months be served concurrently with the revoked suspended sentence of one year and 10 months.
The non-parole period, as much as the head sentence, “must reflect the basic consideration of justice that the punishment should fit the crime”.[13] However, while bearing this in mind, in fixing a non-parole period greater weight can be given to rehabilitation. As noted by Peek J in R v R, AW:[14]
When fixing a non parole period, subjective factors personal to the defendant and his or her rehabilitation come into much closer focus and different weight may be given to these subjective factors than when fixing the head sentence. Thus Doyle CJ observed when fixing a non parole period in R v Miller:[15]
… I must consider all factors relevant to the setting of a head sentence, but it is appropriate to give greater weight to rehabilitation of the prisoner when fixing a non-parole period, and to bear in mind the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.
(Emphasis added by Peek J)
[13] R v Creed (1985) 37 SASR 566 per King CJ.
[14] (2012) 113 SASR 179, [53].
[15] (2000) 76 SASR 151, 160.

It is also to be remembered that a non-parole period for offending of the present type does not entitle the prisoner to be granted parole at the expiration of the period; it merely delineates the earliest time at which the Parole Board may (not must) release the prisoner on parole.
The non-parole period I would fix to reflect the requirements of s 10(4) and s 29D of the Sentencing Act, the effect this offending has had on M and the weight I would attach to the circumstances referred to in paragraphs [59]-[61] above, is 18 months.
The head sentence and non-parole period should be backdated to 17 December 2013. I would decline to suspend the sentence, there being in my opinion no good reason to do so.