R v CAB
[2020] SASCFC 33
•5 May 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CAB
[2020] SASCFC 33
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Doyle and The Honourable Justice Livesey)
5 May 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Application by the Director of Public Prosecutions for permission to appeal against a sentence imposed in the District Court.
The respondent is a serious registrable offender under the Child Sex Offenders Registration Act 2006 (SA) (CSORA). On 4 December 2019 he was convicted and fined $900 for committing the following three offences against the CSORA:
• failing to comply with reporting obligations contrary to s 44(1);
• failing to comply with reporting obligations relating to reportable contact with a child contrary to s 44(1a); and
• being a serious registrable who had reportable contact with a child and did not inform an available responsible of his status as a serious registrable offender or the offences that resulted in him receiving that status contrary to s 66L(2).
Each of the three offences was committed whilst the respondent was subject to a term of imprisonment, ordered to be served on home detention, that was imposed for three counts of child sexual offending that occurred between 1975 and 1989.
In the District Court, the Director made an application for the revocation of the respondent’s home detention order consequent upon the respondent committing the three offences. The sentencing Judge excused the breach of the order and dismissed the Director’s application for revocation. The respondent served the remainder of his home detention order without further incident and was released on parole on 16 May 2019.
In this Court the Director sought permission to appeal on two grounds; first, on the ground that the sentence imposed for the three offences was manifestly inadequate, and secondly, on the ground that the sentencing Judge erred in refraining to revoke the respondent’s home detention order.
Held, per Livesey J (Kourakis CJ and Doyle J agreeing) refusing permission to appeal:
1. Given the approach taken to the facts by the parties before the sentencing Judge, and bearing in mind the respondent’s personal circumstances, the fine of $900 was not a manifestly inadequate sentence.
2. It was open to the sentencing Judge to find that there were proper grounds to excuse the respondent’s breach of his home detention order and refrain from revoking the order.
3. In any event, the purposes that Crown appeals against sentence are intended to serve would not be met by a grant of permission to appeal.
Child Sex Offenders Registration (Miscellaneous) Amendment Act 2013 (SA); Child Sex Offenders Registration Act 2006 (SA) s 3, s 4, s 11, s 13, s 16, s 17, s 18, s 20A, s 44, s 66L; Criminal Law (Sentencing) Act 1988 (SA) s 58; Offenders Probation Act 1913 (SA) s 9; Sentencing Act 2017 (SA) s 73, s 114, referred to.
Everett v The Queen (1994) 181 CLR 295, applied.
Cullen v The King [1949] SCR 658; Dinsdale v The Queen (2000) 202 CLR 321; Griffiths v The Queen (1977) 137 CLR 293; House v The King (1936) 55 CLR 499; Meissner v The Queen (1995) 184 CLR 132; Police v Heritage [2019] SASCFC 60; Police v Schmidt; Attorney-General (SA) v Schmidt [2018] SASC 80; Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; R v Buckman (1988) 47 SASR 303; R v Donald [2013] NSWCCA 238; R v Lean (2017) 128 SASR 451; R v Lutze (2014) 121 SASR 144; R v Smith [2014] SASCFC 98, considered.
R v CAB
[2020] SASCFC 33Court of Criminal Appeal: Kourakis CJ, Doyle and Livesey JJ
KOURAKIS CJ: I would dismiss the Director’s application for permission to appeal for the reasons given by Livesey J.
DOYLE J: I would dismiss the Director’s application for permission to appeal for the reasons given by Livesey J.
LIVESEY J: This is an application for permission to appeal by the Director of Public Prosecutions against a sentence imposed by a Judge of the District Court. The respondent is a serious registrable offender under the Child Sex Offenders Registration Act 2006 (SA) (CSORA or the Act). The table below lists the offences for which he was convicted and sentenced on 4 December 2019, in addition to identifying the date upon which the offences were committed, the applicable maximum penalties, the applicable maximum discount that could be afforded to the respondent and the sentences imposed.
Count Date of offending Offences Maximum penalty Maximum discount Sentence imposed 1. 25 October 2018 Being a registrable offender who failed to comply with his reporting obligations without reasonable excuse contrary to s 44(1) CSORA Fine of $10,000 or imprisonment for two years 40% Fine of $300 2. 25 October 2018 Being a registrable offender who failed to comply with a reporting obligation relating to reportable contact with a child without reasonable excuse contrary to s 44(1a) CSORA Fine of $25,000 or imprisonment for five years 40% Fine of $300 3. 2 November 2018 Being a serious registrable offender who had reportable conduct with child, did not as soon as practicable after the contact, inform an available responsible adult of his status as a serious registrable offender and the offences that resulted in him becoming a serious registrable offender contrary to s 66L(2) CSORA Fine of $25,000 or imprisonment for five years 40% Fine of $300
Each of the three offences to which the respondent pleaded guilty (the three offences) was committed whilst the respondent was subject to a term of imprisonment for two years, four months, three weeks and four days, with a non-parole period of 14 months. That sentence was imposed for three counts of child sexual offending for which the respondent had been convicted. It was ordered to be served on home detention. That sentence, to which I return to below, was imposed on 16 March 2018 and the non-parole period ended in May 2019.
The Director made an application for the revocation of the respondent’s home detention order consequent upon the respondent committing the three offences because that conduct breached a condition of the order requiring the respondent to be of good behaviour. The sentencing Judge excused the breach of the order and dismissed the application for revocation.
In this Court the Director seeks permission to appeal on two grounds; first, on the ground that the sentence imposed for the three offences was manifestly inadequate (ground 1), and secondly, on the ground that the sentencing Judge erred in refraining to revoke the respondent’s home detention order (ground 2).
I would refuse permission to appeal. My reasons follow.
Crown appeals against sentence
The principles confining Crown appeals against sentence to the “rare and exceptional” case are well settled.[1] In Everett v The Queen (Everett) Brennan, Deane, Dawson and Gaudron JJ explained:[2]
Section 401(2)(c) of the Tasmanian Criminal Code confers upon the Court of Criminal Appeal jurisdiction to grant leave to the Attorney-General to appeal against sentence. Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. 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. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick C.J. in Griffiths v. The Queen:
“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick C.J. saw as constituting “error in point of principle”.
(Footnotes omitted.)
[1] See Everett v The Queen (1994) 181 CLR 295, 299-300; Green v The Queen (2011) 244 CLR 462; CMB v Attorney-General (NSW) (2015) 256 CLR 346; R v McIntosh [2017] SASCFC 87; R v Ross (2018) 132 SASR 31; R v Lean (2017) 128 SASR 451.
[2] (1994) 181 CLR 295, 299-300.
In R v Lean, Hinton J, with whom Stanley and Nicholson JJ agreed, succinctly summarised the effect of the Everett principles:[3]
... before this Court will grant the Director permission to appeal error in the House v The King sense must be demonstrated and, in addition, this Court must be persuaded that strong reasons of public policy exist which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State. Strong reasons are required because of the premium that the common law places upon a person’s freedom from interference by the State. Strong reasons are required because of the premium that the common law places upon a person’s freedom from interference by the State. Generally, strong reasons will exist where it is necessary to intervene “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, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience”.
In addition, the cautionary advice of King CJ in R v Osenkowski should not be overlooked. King CJ said:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
(Footnotes omitted.)
[3] (2017) 128 SASR 451, [4]-[5].
In this case the Director submits that the respondent’s sentence for the three offences is manifestly inadequate, and that the breach of the home detention order should not have been excused, with the consequence that the sentencing Judge erred in the sense explained in House v The King.[4]
[4] (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
The Director also asserts that the sentence of a $900 fine and the failure to revoke the home detention order are so disproportionate to the seriousness of the offending that to allow them to stand would “shake public confidence in the administration of justice”.[5]
[5] Citing R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ).
In Dinsdale v The Queen Gleeson CJ and Hayne J said:[6]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. …
[6] (2000) 202 CLR 321, [6].
The submissions of the Director did not concentrate on any “specific” or “process” error. Rather, they emphasise an “outcome” error.[7] Accepting this, to determine whether a sentence is, or is not, manifestly inadequate, it is necessary to review (if not repeat) the sentencing process undertaken by the sentencing Judge. A sentence may be inadequate because it is the wrong type of sentence (for example, non-custodial rather than custodial), or because the sentence imposed is manifestly too short such that it does not fall within the permissible range.[8] If an error is established, the Everett principles must then be applied to determine the outcome of this application.
[7] R v Lutze (2014) 121 SASR 144, [45]-[49] (Vanstone and Parker JJ).
[8] Dinsdale v The Queen (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J).
The circumstances of the offending
On 21 October 2018, Intensive Compliance Officers attended the respondent’s home to conduct a face-to-face visit and breath test. Whilst in attendance the respondent told them that he was teaching English via Skype. One of the Officers glanced at the respondent’s computer screen and saw a female who appeared to be in her teenage years. Whilst the respondent had previously told his Case Officer that he was teaching English on Skype he had not said that he was teaching a child.
As a consequence, police interviewed the respondent at his home on 2 November 2018. The respondent said that he had used Skype to provide English lessons to the child twice weekly over a one-month period in the presence of the child’s father. The child was 14 years old at the time, lived in Indonesia and the respondent knew she had a younger brother. The respondent failed to report his contact with the child within two days of the contact occurring without reasonable excuse (count 2).[9]
[9] Child Sex Offenders Registration Act 2006 (SA), ss 20A, 44(1a).
The English lessons had been requested and organised by the child’s father and uncle. The respondent failed to report to the child’s father his status as a serious registrable offender and the offences that resulted in him receiving that status (count 3).[10] The child’s uncle knew about the respondent’s previous convictions. The respondent said he assumed that the uncle had told the father about his status and convictions given that he had been the one who put the father and the respondent in touch with one another.
[10] Child Sex Offenders Registration Act 2006 (SA), s 66L(2).
During his interview with police in November 2018, the respondent also reported that he had been using a telecommunication application called “WhatsApp” since 2015. His failure to report his use of WhatsApp to the Commissioner of Police within seven days of starting to use the application occurred without reasonable excuse (count 1).[11] Whilst the respondent understood that he had to report all of his login names and passwords, as there was no login name and password for WhatsApp, he assumed that there was nothing to report. In any event, he said he was under the assumption that police could intercept his mobile phone and WhatsApp messages via the telephone number he had given them, and he had not used WhatsApp to contact any children.
[11] Child Sex Offenders Registration Act 2006 (SA), ss 16(1), 44(1).
Charges were not laid and the respondent was not arrested until some five months later on 4 April 2019. This Court was told that SAPOL had seized the respondent’s mobile phone and computer equipment and had taken some months to analyse it. No additional or more serious offending was alleged.
The respondent was released from home detention on 16 May 2019.
The respondent’s personal circumstances and criminal antecedents
The respondent was born in Adelaide and grew up in country South Australia. He is currently 79 years of age. He identifies as a homosexual man. He is the eldest of five children and remains in contact with his siblings. He completed two years at a teacher’s college before training and being ordained for priesthood. In the mid-1990s, at age 54, the respondent left the Catholic Church. Thereafter, he made several unsuccessful attempts to obtain paid employment, although he completed a course of study which qualified him as a teacher of English as a second language.
In 1995 the respondent left for Indonesia where he worked as a second language teacher. This ended in February 2008, some 13 years later, when he was arrested and imprisoned in Indonesia for one year awaiting extradition to Australia for child sex offences which it was alleged occurred in the late 1970s, early 1980s and in 1994. These comprised three counts of indecent assault and two counts of unlawful sexual intercourse. The respondent was returned to Australia. The respondent pleaded guilty to the five offences and on 5 August 2010, at the age of 69, he was sentenced by Judge Rice in the District Court to a term of imprisonment of six years, six months with a non-parole period of four years. Judge Rice described the circumstances of the respondent’s offending as follows:
Dealing with the indecent assault referred to in Count 1 of the Magistrates Court Information of 24 November, 2006, it occurred at Crystal Brook in about 1977-1979 and consisted of you touching and masturbating a boy then aged 13 or 14 years.
Count 2 of the same Information, an indecent assault, consisted of you masturbating the male victim then aged 13 years at Crystal Brook. This occurred somewhere from about 1979 to June, 1980. On that same occasion you committed an unlawful sexual intercourse on the same victim by performing an act of fellatio upon him. …
Count 6 of the Magistrates Court Information of 24 November, 2006, an indecent assault, consisted of you, at Port Pirie, touching the penis of your victim. This offending occurred in about mid to late 1982.
The final offence is count 4 of the District Court Information. This offence of unlawful sexual intercourse was committed on 1 March, 1994 at Black Forest when you performed an act of fellatio upon your 15 year old victim.
Whilst serving his sentence in Mount Gambier prison, the respondent obtained employment in the Education Unit where he taught English and literacy and numeracy bridging courses. He also participated in the Sexual Behaviour Clinic Program between 2013 and 2014. Upon completion, he was considered to be at low risk of sexual reoffending.
The respondent was released on parole on 9 May 2014. Soon after release he was placed on the Register of Child Sex Offenders and was notified of his reporting obligations. He was employed in various business ventures, including buying and selling second-hand furniture, managing his sister’s hostel for international adult workers and he owned and operated two online IT consultancy businesses. His relatively modest income from these ventures supplemented his aged-care pension.
Upon re-entering the community, the respondent engaged in consensual sexual relationships with adult men in Australia and Indonesia. He travelled to Indonesia in October 2015 and May 2016 for a one-month holiday on each occasion.
On 16 March 2018, at the age of 76, the respondent was sentenced in the District Court by Judge Costello after pleading guilty to two counts of indecent assault involving children and one count of persistent sexual exploitation of a child which had occurred between 1975 and 1989. Judge Costello imposed a term of imprisonment of two years, four months, three weeks and four days, with a non-parole period of 14 months. The circumstances surrounding the respondent’s offending were described as follows:
In terms of the circumstances surrounding your offences I was informed that at the commencement of the period involving the persistent sexual exploitation charge, your victim AGK was some 10 years old. The offence occurred in Whyalla where AGK was living at the time. He was at the time in year 5 and served as an altar boy in the local Catholic church where you were the parish priest. AGK’s family befriended you and invited you to join them for Christmas and to accompany them on holidays. You groomed AGK by making him feel special, taking an interest in his stamp collection, providing him with explicit pornographic magazines and engaging him in conversations of a sexual nature. After meeting and gaining the trust of AGK’s family through your role in the church you regularly visited them at the family home. On at least three occasions you climbed through AGK’s bedroom window and sexually abused him. On another occasion the sexual abuse occurred in your bedroom at the church presbytery. The sexual abuse took place over a four-year period and at times on a weekly basis, although there were also times when months could pass without any sexual abuse taking place.
The sexual abuse to which I have referred included actions on your part whereby:
·you touched AGK’s genitals over his school trousers;
·you pulled his pants down and looked at his exposed penis;
·you touched his penis;
·you exposed your penis to him;
·you masturbated in his presence and at times ejaculated;
·you encouraged him to masturbate in your presence;
·you rubbed his penis; and
·you performed fellatio upon him.
With respect to the indecent assault against the victim JH, I was informed that you met him through your role as a Catholic priest in Port Pirie. You were again befriended by his family and attended the family home for social functions but also when not invited.
The indecent assault on him occurred when he was aged between six and nine years old. This offence occurred when you entered his bedroom when he was about to get dressed. You put your arm around his chest, lifted him off the ground and then thrust your left hand down his pyjama pants and groped his genitals.
In relation to your victim MJK this offending took place when he was somewhere between the ages of 14 and 15. You had met him as a result of your earlier contact with AGK’s family. You walked into his bedroom while he was lying on his bed, you reached down and grabbed his penis. He made it clear in no uncertain terms that he did not like what you had done and told you to get out. You took your hand away and immediately left the room.
Judge Costello had the benefit of a psychological report dated 8 May 2017 from Dr Richard Balfour. Dr Balfour detailed the respondent’s attitude towards the offences, his reasons for offending and his remorse:
I asked [the respondent] what is his general attitude towards his offending behaviour and he replied “I am profoundly remorseful. The pain that I have caused others distresses me. The consequences for myself, my family and the community, especially the victims is catastrophic”.
I asked [the respondent] to explain to me why his offending behaviour is wrong and he replied “it was grossly serious and bad. Because it betrayed their trust. Because I injured them psychologically and mentally and upset them. And it was against the law. And I apologise to the Bishop and the priests for the harm that I have done in that regard as well. The Church has lost its credibility to a great extent through me”.
…
I asked [the respondent] to describe the impact of his offending behaviour upon the victims and he replied “They’re good people. They are people of faith. They would be very disappointed and hurt and let down. They’ve probably been through a whole lot of emotions and conflicting feelings because of what I have done”.
I asked [the respondent] who is responsible for his offending behaviour and he replied “I’ve been responsible for what’s happened. Because I was an adult person and I didn’t live up to my responsibilities and the trust that was placed in me. I think that the inadequacies of the system [sic]. I really regret that somebody didn’t track me down sooner”.
I asked [the respondent] why he had offended and he replied “Sexual gratification and the anger and some power thing I suppose. There were lots of issues in my life at that time, and I didn’t act rationally that’s for sure”.
I asked [the respondent] what important lessons had he learned from his offending behaviour and he replied “I am absolutely resolved just not to do it again; and not to put myself in any risky situations, or to get myself in a situation where I might be emotionally upset to make myself vulnerable. A healthy positive lifestyle, and awareness of my risk factors. Assessing myself regularly, and making sure I live positively. The biggest risk factor is association with under-aged teenage boys; and I am absolutely not going to get anywhere near any of that. Allowing myself to become emotionally unstable to the extent that I lose control of my life”.
Dr Balfour accepted that the respondent had previously suffered from homosexual paedophilia but considered his criminogenic risk profile for committing non-sexual crimes during the forthcoming 12 months to be low and his prognosis for any offending to be good.
Judge Costello ordered that the respondent serve his sentence on home detention, considering there to be “little to no risk to the safety of the community by permitting [the respondent] to serve [his] sentence in this way”.
The respondent remains on parole, having been released from home detention on 16 May 2019. Parole will expire in August 2020. He continues to be subject to obligations imposed by the CSORA. He is dependent on the aged care pension. He now suffers from type 2 diabetes and has hyperlipidemia for which he takes a statin medication. He also has urinary incontinence and a raised PSA level which may be indicative of prostate cancer.
The approach of the sentencing Judge
After referring to the circumstances of the respondent’s previous offending for which he was sentenced on 5 August 2010 and 16 March 2018, the circumstances surrounding the commission of the three offences, and the respondent’s personal history, the sentencing Judge said as follows in sentencing:
Despite the conduct itself being at the lower end of the scale of seriousness, in contraventions of this kind they are nevertheless serious as they go to the heart of what the legislation aims to avoid. The child Sex Offenders Registration Act is a very important tool used to ensure the ongoing safety of children and to prevent re-offending.
I accept that the circumstances here do not give rise to any danger to the child. In my view the breaches are minor examples of contraventions against the Act. There was no intention on the part of the accused to subvert the ANCOR authority or deliberately hide his activities.
The purpose of the Act is clear enough and in my view the menace which Parliament foresaw is not activated on these facts.
I make the following orders:
I convict the offender of the three fresh offences.
I fine the offender $300 for each of the three offences.
I excuse the breach of the home detention order and refrain from revoking the order which remains active. I do so on grounds that the three breaching offences are relatively minor for the reasons that I have discussed.
I remind the accused of his responsibilities pursuant to the home detention order and the Sex Offences Registration Act and if this prevents him from pursuing this type of activity in the future, then so be it.
Submissions
The Director commenced his submissions on ground 1 by referring to the importance of registrable offenders assiduously discharging their reporting obligations under the CSORA in order to ensure that children are protected. As such, personal and general deterrence would generally attract significant weight in sentences for failures to comply with CSORA reporting obligations. In this case, it was submitted, it was notable that the sentencing Judge did not appear to address either personal or general deterrence.
Instead, the Director continued, the sentencing Judge showed a degree of leniency that was not justified. This was particularly so in circumstances where the respondent had previously been shown leniency by being given a home detention order for previous child sex offences.
Noting that the adequacy of a sentence will be informed by the particular circumstances in each case, the Director referred the Court to the cases of Police v Hore,[12] Melvaine v Police,[13] Newson v Police,[14] R v Morris,[15] R v Harrington,[16] R v C,[17] R v Foster,[18] R v Wilson-Simmons,[19] R v T[20] and R v B[21] in support of the submission that a fine of $300 for each offence fell well below the range of sentences imposed in the Magistrates and District Courts for contraventions against the CSORA.
[12] [2015] SASC 150.
[13] (2012) 112 SASR 452.
[14] [2015] SASC 105.
[15] DCCRM-19-1135.
[16] DCCRM-19-1244, 19-1031 and 19-1243.
[17] DCCRM-19-831 and 19-967.
[18] DCCRM-19-942, 19-1021, 19-1022, 19-1023 and 19-637.
[19] DCCRM-19-332 and 19-331.
[20] DCCRM-18-1229, 18-1125, 18-1173 and 19-323.
[21] DCCRM-17-555, 17-556, 17-1330, 17-1331, 17-1340 and 17-557.
In all, it was contended that the sentencing Judge imposed a manifestly inadequate sentence by downplaying the seriousness of the three offences given the following circumstances:
1the length of time the respondent had been using WhatsApp;
2the length of time the respondent had been in contact with the child in Indonesia;
3the fact that the respondent maintained ties to Indonesia;
4the prior sentence of imprisonment for the sexual abuse of four children whilst serving as a Catholic priest; and
5the fact the respondent was subject to a home detention sentence, which was in relation to the sexual abuse of a further three children.
The Director submitted that mischaracterising the three offences as being “at the lower end of the scale of seriousness” infected the sentencing Judge’s consideration of the application for revocation of the home detention order. This took the Director to his submissions on ground 2.
In committing the three offences the respondent breached the condition of his home detention order that required him to be of good behaviour. This was conceded.
However, it was the Director’s submission that by describing the three offences as “relatively minor”, the sentencing Judge must have considered that this constituted proper grounds upon which to excuse the breach, and that this was an error. This was not a case where it would be inappropriate to revoke the home detention order because the conduct constituting the breach (three contraventions of the CSORA) was of a markedly different character to that for which the sentence ordered to be served on home detention was imposed (the commission of child sex offences). Nor was it a case where there was a marked disproportion between the seriousness of the conduct constituting the breach and the sentence of imprisonment that would be activated which, after taking into account the time served on home detention between the date of the sentence (16 May 2018) and the date of the first breach (25 October 2018), would be one year, nine months, two weeks and two days. Of course, it was submitted, it was in the sentencing Judge’s discretion to reduce this to account for the additional time the respondent spent on home detention pending determination of the proceedings on 4 December 2019.
In drawing his submissions to a close, the Director contended that refraining to revoke the home detention order would undermine the integrity of the order and its means of deterring future offenders.
For his part, counsel for the respondent submitted that the sentencing Judge correctly characterised the three offences as “minor examples of contraventions” of the CSORA. In support of this submission he made four points:
1First, the respondent had made full and frank admissions of his use of Skype for teaching and his use of the WhatsApp application. Thus, he evinced no intention to subvert the ANCOR authority or deliberately hide his activities.
2Secondly, police seized the respondent’s computer and subsequent analysis revealed no suggestion of further breaches of his reporting obligations.
3Thirdly, the circumstances of the three offences were such that the teaching of the female child always occurred in the presence of the father, the child was in Indonesia, and it had been the child’s uncle who had arranged the English lessons and who knew of the respondent’s previous offending.
4Fourthly, the respondent’s previous offending was by and large historical sex offences against boys. Being a homosexual, and having previously suffered from homosexual paedophilia, meant that he did not have an attraction for, and there was no risk to, young girls.
Counsel for the respondent then turned to the 10 sentencing cases referred to by the Director. He observed that each of the cases was plainly distinguishable from the present case as the failure to comply with CSORA reporting obligations in those cases was accompanied by more serious offending of the type that the CSORA was generally designed to prevent. It was also notable that some of the sentences referred to by the Director were handed down by the same sentencing Judge as in this case. That suggested that the Judge must have found the facts of this case to be different to those referred to by the Director where the Judge had previously imposed terms of imprisonment. In any event, there were other cases, counsel contended, that were not referred to by the Director but which, upon examination, did not reveal a range of sentences well above the imposition of a fine.[22] Counsel submitted that analysing the sentencing cases was ultimately of little utility and certainly not supportive of the Director’s position. And, in all the circumstances, the respondent’s offending was at the lower end of the scale of seriousness and a fine of $900, presumably reduced from $1500 on account of the early guilty pleas for which the respondent was entitled to a credit of up to 40 per cent, was not only within the range but the appropriate penalty.
[22] See, eg, Hann v Police [2019] SASC 213. Mr Hann had contravened s 44(1) of the Child Sex Offenders Registration Act 2006 (SA) by not notifying police of the subscriber number of a new mobile telephone number. The Magistrate convicted Mr Hann without penalty.
In relation to ground 2, counsel for the respondent emphasised that there had been a significant delay between the time the respondent was interviewed (2 November 2018) and the time he was arrested (4 April 2019), thus allowing the respondent to serve a significant portion of his sentence on home detention. Counsel also reminded the Court that the respondent had now served the entirety of his home detention order without further incident, and had been on parole since 16 May 2019, again without further incident. Thus, allowing the appeal would result in the respondent being twice vexed by the State repeating its exercise of coercive power.
Consideration
In dealing with ground 1, it is instructive to first set out the objects of the CSORA which are found in s 3:
3—Object
The object of this Act is to protect children from sexual predators by—
(a)requiring certain persons who may have a propensity to commit sexual offences against children to keep the Commissioner of Police informed of their whereabouts and other personal details for a period of time—
(i)to reduce the risk of such offences being committed; and
(ii)to facilitate the investigation and prosecution of any offences that are committed; and
(b)preventing such persons from engaging in child-related work.
In relation to counts 1 and 2, the legislative instruction is found in ss 44(1) and (1a). They provide:
44—Offences of failing to comply with reporting obligations
(1)A registrable offender must not fail to comply with any of his or her reporting obligations without a reasonable excuse.
Maximum penalty: $10 000 or imprisonment for 2 years.
(1a) A registrable offender must not fail to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse.
Maximum penalty: $25 000 or imprisonment for 5 years.
Reportable contact is defined in s 13(4) of the CSORA:[23]
[23] Section 4 of the Child Sex Offenders Registration Act 2006 (SA) provides that “reportable contact” has the meaning set out in s 13(4) of the Act.
(4) For the purposes of this section, a person has reportable contact with a child—
(a) if—
(i) the person has contact with the child consisting of—
(A)any form of physical contact or close physical proximity with the child; or
(B)any form of communication with the child (whether in person, in writing, by telephone or other electronic device); and
(ii)the contact with the child—
(A)occurs in the course of—
• the person or the child visiting or residing at a dwelling (whether the person and the child are alone or with others); or
• the person (whether alone or with others) supervising or caring for the child; or
(B)involves the person providing contact details to the child or obtaining contact details from the child or otherwise inviting (in any manner) further contact or communication between him or her and the child; or
(b)if the person has contact of a kind, or occurring in circumstances, prescribed by the regulations.
Section 13(6) makes clear that reportable contact includes contact that is supervised.
Reporting obligations are defined to mean obligations imposed by Part 3 of the CSORA.[24] More particularly, divisions 1 and 2 of Part 3 impose variegated initial and ongoing reporting obligations on registrable offenders, including reporting obligations with respect to personal details,[25] intended absences from the State,[26] change of travel plans while out of the State,[27] and reportable contact with a child.[28]
[24] Child Sex Offenders Registration Act 2006 (SA), s 4.
[25] Child Sex Offenders Registration Act 2006 (SA), ss 11, 13, 16.
[26] Child Sex Offenders Registration Act 2006 (SA), s 17.
[27] Child Sex Offenders Registration Act 2006 (SA), s 18.
[28] Child Sex Offenders Registration Act 2006 (SA), s 20A.
This brief overview demonstrates what might be thought obvious: contraventions against ss 44(1) and (1a) can be committed in a myriad of circumstances. It is, in the main, why the Director’s comparison of the sentences referred to in the cases cited can provide only the most general assistance.[29]
[29] Barbaro v The Queen (2014) 253 CLR 58, [40]-[41] (French CJ, Hayne, Kiefel and Bell JJ); Hili v The Queen (2010) 242 CLR 520, [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In Police v Sullivan; Attorney-General (SA) v Sullivan Hinton J, in considering offences committed contrary to ss 44(1) and (1a) of the Act, said:[30]
Self-evidently the object of the Act will be frustrated if a registrable offender does not assiduously discharge his or her reporting obligations. It follows that any sentence imposed for failing to meet reporting obligations must deter other registrable offenders from the temptation not to meet their statutory obligations.
[30] [2018] SASC 11, [68].
Respectfully, I agree. However, I add that sentences giving strong emphasis to general deterrence are more likely to be expected following contraventions against s 44(1a) than s 44(1). Section 44(1a) was inserted in the CSORA by the Child Sex Offenders Registration (Miscellaneous) Amendment Act 2013 (SA) as part of reforms to “significantly tighten and strengthen the reporting requirements under the act”.[31] That it is regarded by Parliament as a “more serious offence” than s 44(1)[32] is apparent from the higher maximum penalty that Parliament has prescribed.[33]
[31] South Australia, Parliamentary Debates, House of Assembly, 4 July 2013, 6424.
[32] South Australia, Parliamentary Debates, House of Assembly, 4 July 2013, 6425.
[33] As mentioned earlier in these reasons, the maximum penalty for contravening s 44(1a) of the Act is a fine of $25,000 or imprisonment for five years, which is more than double the maximum penalty that s 44(1) provides which is a fine of $10,000 or imprisonment for two years.
There are very good reasons, I think, for this differentiation. Section 44(1a) is not directed at just any failure to comply with a reporting obligation. It is directed specifically at a failure to comply with a reporting obligation concerning reportable contact with a child. Thus, s 44(1a), taken together with s 13(4), go to the heart of the objects of the CSORA.
As mentioned earlier in these reasons, count 1 was the respondent’s failure to report his use of WhatsApp to the Commissioner without a reasonable excuse. On the hearing of the appeal some disquiet was expressed about whether the respondent’s use of WhatsApp had to be reported under the CSORA given that there was apparently no password or username used, nor any access code for that matter, which could be reported.[34] However, there is no appeal by the respondent and no evidence or substantive argument on the issue. The Court is thereby constrained to act on the plea of guilty.[35]
[34] See Child Sex Offenders Registration Act 2006 (SA), s 13.
[35] See Meissner v The Queen (1995) 184 CLR 132, 141 where Brennan, Toohey and McHugh JJ said:
A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.
(Footnote omitted.)
I find it significant that the respondent voluntarily disclosed his use of the WhatsApp application during his interview with police in November 2018. The respondent was, as mentioned, quick to emphasise that he had not used the application to contact any children. There being no evidence or suggestion to the contrary, the sentencing Judge was entitled to sentence on that basis. The same may be said of the respondent’s explanation that he did not initially disclose his use because it was a matter of oversight given the apparent absence of a password, username and access code.
In light of these factors, the sentencing Judge was entitled to conclude that the circumstances gave rise to no danger to any child and, given the absence of an intention to subvert the ANCOR authority or deliberately hide his use, it could properly be regarded as a “relatively minor” contravention of the Act.
In relation to count 2, for reasons already advanced, the respondent’s failure to comply with a reporting obligation relating to reportable contact with a child over the internet was a more serious offence.
As our criminal courts know all too well, the rapidly evolving and far-reaching nature of the internet, coupled with the anonymity it can provide, create unprecedented opportunities for child sex offenders to identify potential victims. If communication is made, the harm to the child may be considerable even if physical contact never ensues. Of course, experience has also shown that communication can eventually lead to unlawful sexual activity.
In this case, I accept that the contact with the child occurred in the presence of her father and was never unsupervised. The fact that reportable contact occurs under the supervision of a responsible adult is irrelevant for conviction purposes, given that the definition of “reportable contact” in s 13 of the CSORA explicitly includes contact that is supervised.[36] It can, however, operate as a mitigating factor when sentencing an offender for an offence contrary to s 44(1a).
[36] Child Sex Offenders Registration Act 2006 (SA), s 13(6).
It must also be recalled that the child’s uncle knew the English lessons were taking place and knew of the respondent’s previous convictions, which would have operated as an additional protection.
True it is that the child was known by the respondent to have a younger brother in Indonesia. This, it was suggested, demonstrated that some risk was posed. However, on the evidence before the sentencing Judge, the contact was only for the purposes of teaching English to the female child and nothing more. As with count 1, it is significant that the conduct the subject of count 2 did not amount to a wanton disregard by the respondent of his CSORA reporting obligations. As with count 1, the conduct the subject of count 2 was disclosed, in effect, by the respondent’s admissions.
In context, it is difficult to challenge the conclusions reached by the sentencing Judge in relation to count 2.
Count 3, as explained earlier in these reasons, involved a contravention of s 66L(2) of the CSORA. I set out that sub-section in full:
66L—Information to be provided to parents and guardians
...
(2)A serious registrable offender who has, or intends to have, reportable contact with a child must, as soon as practicable after the contact, or after forming the intention to have contact, tell an available responsible adult—
(a) that he or she is a serious registrable offender under this Act; and
(b) what the offence or offences were that resulted in him or her becoming a serious registrable offender.
Maximum penalty: $25 000 or imprisonment for 5 years.
By s 66L(3) an “available responsible adult” is defined to mean a parent or guardian of the child that is known to the serious registrable offender, or an adult person apparently responsible for the supervision of the child, at the time of the contact or when the serious registrable offender forms the intention to have the contact.
In Police v Schmidt; Attorney-General (SA) v Schmidt the Court considered s 66L(2) and said:[37]
The knowledge that s 66L(2) insists be imparted to available adults provides a protective layer in addition to that which ss 20A and 44 of the Child Sex Offenders Registration Act in particular, and the reporting obligations imposed by the Act generally, are intended to have. Without knowledge of the risk a person poses to children, unsuspecting parents, guardians and carers cannot take steps to protect and deter. Such parents, guardians and carers are reliant upon the authorities who cannot always best protect their children from the serious registrable offender as he or she moves about the community and who all too often gains the trust of adults with whom he or she comes into contact.
Obviously the effectiveness of s 66L(2) as a protective measure, and as a means of deterring the serious registerable offender from offending, is dependent upon the serious registrable offender complying with the obligation that s 66L(2) imposes. The importance that Parliament attaches to empowering an available responsible adult is reflected in the maximum penalty. It is also reflected in the fact that the measure is applied to the serious registrable offender and not to the registrable offender. That is, Parliament has determined that the intrusion on the serious registrable offender’s privacy that the required disclosure represents and the opprobrium it may attract is the price that must be paid, bearing in mind that they are a registrable repeat offender, in order that children be protected.
[37] [2018] SASC 80, [118]-[119] (Hinton J).
In this case, I accept that one may be sceptical about whether the respondent could think that it was sufficient that the child’s uncle was informed, and not her father, who was the “available responsible adult” for the purposes of the Act. I emphasise that even if the uncle had informed the child’s father of the respondent’s status as a serious registrable offender and the offences that resulted in him receiving that status, the obligation remained with the respondent to disclose these details directly to the father. Nevertheless, the basis upon which the matter was presented to the sentencing Judge (and accepted) was that the failure to tell the child’s father was a mere matter of oversight.
In the absence of any suggestion that the offending formed part of an attempt to “groom” the female child (or to “groom” any other child), and where there was no evidence or suggestion that the respondent was using this as a step toward recommencing sexual offending, one can understand why the sentencing Judge said that the “menace” foreseen by Parliament when enacting the CSORA was “not activated on these facts”.
In all of these circumstances, whilst one might debate the appropriate level of the fines for the three offences, it cannot be said that the sentences, allowing for the appropriate credit, were manifestly inadequate. Given the approach taken to the facts by the parties before the sentencing Judge, and bearing in mind the respondent’s personal circumstances, including that $900 is a significant fine for someone on an aged care pension, the totality of the punishment imposed is not disproportionate to the offending.
In any event, I do not think that the purposes that Crown appeals against sentence are intended to serve would be met if permission to appeal were granted.
In these circumstances, I would refuse permission to appeal on ground 1.
I turn to deal with ground 2.
As mentioned, there is no dispute that by the respondent committing the three offences he breached the condition of his home detention order requiring him to be of good behaviour.
The question is whether the sentencing Judge erred in refraining to revoke the home detention order.
Sections 73(1) and (2) of the Sentencing Act 2017 (SA) (the Sentencing Act) relevantly provide:[38]
(1) Subject to this section, if the court that imposed a home detention order on a person is satisfied that—
(a) a person subject to a home detention order has breached a condition of the order; or
…
the court must revoke the home detention order and order that the balance of the sentence the person was serving on home detention be served in custody.
(2)Despite subsection (1)(a), if the court is satisfied that the failure of the person to comply with the conditions of the home detention order was trivial or there are proper grounds on which the failure should be excused, the court—
(a) may refrain from revoking the order; and
(b) may impose a further condition on, or revoke or vary a condition of, the order.
[38] On the hearing of the appeal, the parties advised the Court that the correct version of the Sentencing Act 2017 (SA) was the one in force as at 3 October 2019.
It is to be recalled that in his sentencing remarks the Judge said:
I excuse the breach of the home detention order and refrain from revoking the order which remains active. I do so on the grounds that the three breaching offences are relatively minor for the reasons I have discussed.
The Judge’s remarks during sentencing submissions on 29 October 2019 reveal that he was not satisfied that the breaches were trivial in nature.[39] The parties were united in submitting that the sentencing Judge must have found that there were proper grounds on which the breach could be excused. The Director contended that the Judge erred in doing so. The respondent submitted that the Judge’s approach was open to him in the circumstances. The effect of the Director’s submission, if accepted, would be to require the respondent to serve the balance of the March 2018 sentence in prison unless some lesser period of imprisonment is imposed.[40]
[39] Transcript of proceedings, 29 October 2019, T5.31-33.
[40] Pursuant to s 73(4a)(a)(i) of the Sentencing Act 2017 (SA) if the court revokes the home detention order and orders that the balance be served in custody, the court may take into account any period spent by the person on home detention after the day on which the breach was committed pending determination of the proceedings for the breach.
Section 73(2) is a cognate provision to s 114(1)(c)(ii) of the Sentencing Act which permits the court to excuse the failure to comply with the conditions of a bond associated with a suspended sentence if the breach is trivial in nature or if there are proper grounds on which it can be excused. The power contained in s 114(1)(c)(ii) was previously vested in s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) and before that, s 9(5) of the Offenders Probation Act 1913 (SA). In those contexts it has been held that a court has power to excuse a breach to be of good behaviour through the commission of an unlawful act.[41]
[41] See Police v Bowden [1994] SASC 4536.
As s 73(2) is expressed in terms not materially different to s 114(1)(c)(ii), the Parliament may be taken to have understood that the construction that would be afforded to both provisions would be the same.[42] Thus, authorities concerning s 114(1)(c)(ii) and its progenitors are pertinent to the construction of s 73(2).
[42] Whether because the same words have been used, Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450, 451, or because the same words as construed in the Offenders Probation Act 1913 (SA) have been re-enacted in the Criminal Law (Sentencing) Act 1988 (SA) and subsequently the Sentencing Act 2017 (SA), Fortress Credit Corporation (Australia) ll Pty Ltd v Fletcher (2015) 254 CLR 489, [15] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
In R v Buckman, King CJ considered s 9(5) of the Offenders Probation Act 1913 (SA) and said:[43]
The purpose of subs (5) is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
[43] (1988) 47 SASR 303, 304.
More recently, in R v Smith Kourakis CJ, with whom Vanstone and Blue JJ agreed, considered s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) and explained:[44]
… it is as well to make some additional comments on the appellant’s submissions to the effect that the breach should have been excused because the crime of drive disqualified is not of the “same ilk” or at the same “level of seriousness” as a serious assault. There is no express or implied requirement in s 58(3) of the CLSA that the breaching offence be similar in kind to the offence for which the probationer was placed on a bond. The Judge correctly observed that a suspended sentence bond requires the probationer to be of good behaviour generally, and not merely to refrain from committing offences of a similar kind to that for which the suspended sentence was imposed.
Both the “trivial” and “proper grounds” limbs of s 58(3) of the CLSA invite attention to the nature, extent and circumstances of the breach of the condition to be of good behaviour. The word “proper” is a protean expression which takes its meaning from its context. In the context of s 58(3) of the CLSA, the word takes its meaning both from the other ground, the triviality of the breach, and the condition that the circumstances must be such as to “excuse” the breach. For that reason, the disproportion of which King CJ spoke in Buckman is between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revocation of the suspension. As King CJ observed, differences between the original offence and the breaching offence are not irrelevant but their relevance is limited. The question is whether the circumstances in which the breach was committed are of a nature which excuses the failure to abide the condition of the bond having regard to the purpose for which it was imposed.
Even though different in kind to the offence of aggravated assault, the offences of drive disqualified were serious breaches of the obligation to be of good behaviour and were committed soon after entering into the bond which was calculated to give the appellant an opportunity to return to law abiding ways. There were no circumstances which called for the breach to be excused. Far from being disproportionate, the revocation was the condign consequence of the breach. It was a consequence demanded by the policy of the section articulated by King CJ in Marston.
[44] [2014] SASCFC 98, [24]-[26].
And in Police v Heritage Blue J, with whom Stanley and Lovell JJ agreed, made the following observations with respect to s 58(3):[45]
… There is a clear legislative policy that ordinarily a breach of a condition of a bond should result in the offender serving the full term of the original sentence and the court should not lightly interfere by refraining from revoking or reducing the term of the original sentence.
Turning to the meaning of the expression “proper grounds upon which the failure should be excused” in subsection (3), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection (3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach. This follows from a combination of the juxtaposition between the criteria of trivial breach and proper grounds for excusal (the former giving colour to the latter), the concept of “excusal” of the breach suggesting that the circumstances of the breach justify excusal, the legislative policy that ordinarily a breach should result in the offender serving the full term of the original sentence and the contrast between excusing a breach under subsection (3) and reducing the term of the original sentence by reason of special circumstances under subsection (4).
(Citations omitted.)
[45] [2019] SASCFC 60, [21]-[22]. See also R v Bui (2016) 125 SASR 137, [66] where this Court held that s 58(3) is confined to the nature and circumstances of the breach and do not extend to extraneous matters.
In many cases, revocation of a person’s home detention order will be the appropriate consequence flowing from a breach of their CSORA reporting obligations. The community expects that registrable offenders and serious registrable offenders should not be allowed to “misuse” their home detention orders by being at home and exploiting the opportunity to use computers and other technology in breach of their CSORA reporting obligations. That is particularly so where compliance is a matter often dependent on the integrity of the offender given the undoubted difficulties in detecting breaches of reporting requirements.
Nonetheless, I find that it was open to the sentencing Judge to refrain from revoking the home detention order on the basis that there were proper grounds to excuse the breach. There is a disproportionality between the seriousness of the breach of the home detention order and the consequence that would eventuate upon revocation of the order (immediate imprisonment). There is also a marked, qualitative difference between the three offences and the offending in relation to which the bond was imposed; on the facts presented to the sentencing Judge the three offences did not involve a child being harmed or put in any danger, they were not committed by the respondent as a step toward recommencing sexual offending and they were much less serious in nature than the offending the subject of the sentence imposed in March 2018. For these reasons I also reject the Director’s submission that refraining to revoke the home detention order in this case would undermine the integrity of the order and impair its effectiveness as a means of deterring future contraventions, whether specifically to the respondent or generally in other cases.
In any event, the investigation and prosecution of contraventions against the CSORA must be conducted expeditiously. An incongruity exists between, on the one hand, contending that an offence is serious and that the courts must endeavour to limit its incidence through the sentences they impose and, on the other, the investigation and prosecution of the matter not being progressed as quickly as is reasonably practicable.[46] As Latham J explained in R v Donald: [47]
... [where] general deterrence plays a significant role in the sentencing of an offender, that sentencing principle is undermined, not just by an inadequate sentence but also by a failure on the part of the prosecution to progress the matter expeditiously.
[46] R v Donald [2013] NSWCCA 238, [53] (Latham J, with whom Hidden and Adamson JJ agreed) quoting R v Schwabegger [1998] 4 VR 649, 659-660 (Vincent AJA). However, it has been suggested that delay should not be relevant, see Mirko Bagaric, ‘An Argument for Abolishing Delay as a Mitigating Factor in Sentencing’ 40 Adelaide Law Review 725.
[47] [2013] NSWCCA 238, [54].
The same may be said about the delay in charging and arresting the respondent in this case.
Following his full admissions in November 2018, the respondent remained on home detention for another five months before he was charged and arrested. That delay was not satisfactorily explained by the desire to analyse and test the respondent’s computer and other equipment. The respondent could have been charged on his admissions and, if further offending discovered, additional charges, or charges for more serious offending, later laid. Instead, he had virtually completed home detention by the time of his eventual arrest.
The considerations at [80] demonstrate, I think, that it was open to the sentencing Judge to find that there were proper grounds to excuse the breach and to refrain from revoking the respondent’s home detention order. However, if I am wrong then those same considerations, coupled with the fact that the respondent has served the entirety of the home detention order without further incident and has been on parole since May 2019 (again without further incident),[48] lead me to refuse permission to appeal on ground 2.
[48] It is well settled that in a Crown appeal against sentence, when the respondent was not required by the original sentence to serve time in prison, the court is permitted to take into account the fact that the respondent lived a law-abiding life in the community for a continuous period of time pursuant to the original sentence: Police v Heritage [2019] SASCFC 60, [59] (Blue J, with whom Stanley and Lovell JJ agreed). See also Green v The Queen (2011) 244 CLR 462, [43] (French CJ, Crennan and Kiefel JJ).
I do not think that the public interest in ensuring that the respondent is not twice vexed by the State repeating its exercise of coercive power is outweighed by public policy considerations that favour intervention. As I have indicated, the effect of the Director’s submission would return the respondent to prison. I bear in mind the observations of Rand J in Cullen v The King which, whilst made in the context of an appeal against acquittal, apply with equal force to this case:[49]
At the foundation of the criminal law lies the cardinal principle that no man shall be placed in jeopardy twice for the same matter and the reasons underlying that principle are grounded in deep social instincts. It is the supreme invasion of the rights of an individual to subject him by the physical power of the community to a test which may mean the loss of his liberty or his life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy.
[49] [1949] SCR 658, 668.
In my view, the facts of this case do not present an example of the rare and exceptional case which would afford this Court an opportunity to lay down principles for the governance and guidance of sentencing courts.[50]
[50] Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ).
Conclusion
I dismiss the application.
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