R v C, M

The Court of Criminal Appeal of South Australia, constituted by Gray, Peek and Bampton JJ, heard an appeal by C against a sentence imposed by a sentencing judge. C was convicted of four counts of unlawful sexual intercourse, representing a course of conduct with M, who was between 12 and 17 years of age during the offending period. C complained that the head sentence and non-parole period were manifestly excessive, and that the sentencing judge erred in several respects, including failing to consider concurrency, being unaware of a prior police investigation, and inadequately weighing C's rehabilitation.

The legal issues before the Court of Criminal Appeal included whether the sentencing judge erred by failing to consider the concurrency of the sentence for the breaching offence with the revoked suspended sentence. The Court was also required to determine if the sentencing judge gave insufficient weight to C's rehabilitation between the time of the offending and the sentencing, and whether the judge was aware of and adequately considered a prior police investigation into the offending in 2000, which had not resulted in prosecution at that time.

The Court applied principles concerning the impact of delay and rehabilitation on sentencing. It referred to established authorities, including *R v Todd*, *Kernich v Director of Public Prosecutions (Cth)*, and *Duncan v The Queen*, which emphasise that fairness to an offender requires consideration of their rehabilitation during periods of delay between offending and sentencing. The Court noted that such delay, particularly when coupled with substantial and successful rehabilitation efforts, can necessitate a flexible and understanding approach to sentencing, potentially leading to leniency. The Court also acknowledged that the Director's Counsel could not resist the Court sentencing afresh given the circumstances, including the failure to address concurrency and the diminished weight of personal deterrence due to rehabilitation.

The Court of Criminal Appeal allowed the appeal, quashed the sentence imposed, and remitted the matter for resentencing. The Court ordered that the sentence for the breaching offence be served concurrently with the sentence for the new offending, and that the sentencing judge should give adequate weight to C's rehabilitation and the delay in prosecution.