R v Dyett - [2023] SASCA 41

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v DYETT
[2023] SASCA 41
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
18 April 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Crown appeal against sentence.

The offending concerned unlawful sexual intercourse in the context of a relationship over an 18-month period, which commenced in late 1999 when the complainant was 15 years and the respondent was 21 years. After 18 months the complainant turned 17 and the relationship continued. The complainant and the respondent were later engaged and had a child, but separated during 2003.
During the twenty years between offending and sentence, the respondent commenced a new relationship and raised and supported his family, devoting considerable time to the care of a daughter diagnosed with autism.
After he pleaded guilty the respondent was sentenced to a term of imprisonment of two years. After an allowance of around one third for the respondent’s plea, the sentence became one year and four months. The sentencing judge fixed a non-parole period of eight months.
The Director submitted that both the head sentence and the non-parole period required correction in accordance with well-established principles, so as to maintain proper sentencing standards for offending of this kind.
The Court held (dismissing the application for permission to appeal):
1.The sentence was low. Even if it could be said that the sentence was manifestly inadequate, this is not the kind of rare and exceptional case in which it would be appropriate to grant the prosecution permission to appeal against sentence.
2.The unusual and difficult features of this case militate against the view that the sentence is one which has the capacity to undermine public confidence in the administration of justice.

Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) ss 150 and 157, referred to.
Adams (a pseudonym) v The Queen [2022] SASCA 47; Clarkson v The Queen (2011) 32 VR 361; Dinsdale v The Queen (2000) 202 CLR 321; Everett v The Queen (1994) 181 CLR 295; Glade v The Queen [2020] SASCFC 83; Hili v The Queen (2010) 242 CLR 520; Lee v The State of Western Australia [2022] WASCA 137; Malvaso v The Queen (1989) 168 CLR 227; R v Bahrami (2020) 137 SASR 327; R v Butler [2022] SASCA 112; R v Chesterman [2017] SASCFC 31; R v Creed (1985) 37 SASR 566; R v D (1997) 69 SASR 413; R v Dyett [2022] SADC 6; R v Lutze (2014) 121 SASR 144; R v McGaffin (2010) 206 A Crim R 188; R v McIntyre (2020) 138 SASR 17; R v Osenkowski (1982) 30 SASR 212; R v Palmer [2016] SASCFC 34; R v Quinn [2012] SASCFC 102; R v Temby [2003] SASC 230; R v Todd [1982] 2 NSWLR 517; R v Williams (1990) 53 SASR 253; R v Wirth (1976) 14 SASR 291; R v Yaroslavceff [2022] SASCA 123; Warner v The King [2022] SASCA 142, considered.

R v DYETT
[2023] SASCA 41
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT:
Introduction

This is a prosecution appeal against sentence brought pursuant to ss 150 and 157 of the Criminal Procedure Act 1921 (SA). The sole ground of appeal is that the head sentence and non‑parole period were manifestly inadequate.
On 22 December 2022 the sentencing judge sentenced the respondent to a term of imprisonment of two years after he pleaded guilty to having an unlawful relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty was imprisonment for life. After an allowance of around one third for the respondent’s plea, the sentence became one year and four months. The sentencing judge fixed a non‑parole period of eight months.
The offending concerns unlawful sexual intercourse in the context of a relationship over an 18-month period, which commenced in late 1999 when the complainant was 15 years and the respondent was 21 years. After 18 months the complainant turned 17 and the relationship continued. The complainant and the respondent were later engaged and had a child, but separated during 2003.
The Director submits that both the head sentence and the non‑parole period require correction in accordance with well-established principles, so as to maintain proper sentencing standards for offending of this kind. In addition, it is submitted that the sentencing Judge made a number of specific errors in the course of passing sentence.
The respondent filed a cross‑appeal concerning the conduct of and findings made following a disputed facts hearing, as a result of which the sentencing judge found that, despite the respondent’s denials, he knew the complainant’s true age relatively soon after their relationship commenced. The respondent only presses the cross-appeal in the event that the Crown is granted permission to appeal.
For the reasons that follow, the application for permission to appeal sentence should be refused. As a result, it is not necessary to address the respondent’s cross‑appeal.
The circumstances of the offending
The respondent met the complainant on a Karaoke night at the Enfield Hotel in the latter part of 1999. At that time the respondent was 21 years and the complainant was 15, nearly 16 years. The age difference between the respondent and the complainant is less than six years.
They soon commenced a sexual relationship which included unlawful sexual intercourse until the complainant turned 17 years, see s 49(3) of the Criminal Law Consolidation Act 1935 (SA). Thereafter their relationship continued and they became engaged. Their daughter was born on 11 November 2002.
After the relationship ended during 2003 there were acrimonious Family Court proceedings concerning the custody of the child. The unlawful sexual relationship was admitted by the respondent in affidavits filed in those proceedings.
During May 2007 the complainant reported the offending to police. The police interviewed witnesses but during 2008 the complainant decided not to pursue the matter.
Police contacted the complainant during September 2018. She changed her mind and determined to proceed with her allegations against the respondent. During a formal interview on 4 July 2019 the respondent admitted the sexual relationship but denied knowing at the outset that the complainant was under-age.
There was a disputed facts hearing in January 2022 concerning the issue of the respondent’s knowledge of the complainant’s age. The respondent contended that he was told by the complainant that she was 19 years and he believed that for a number of reasons. These included that they had met at a hotel, that they spent the night in a house ostensibly occupied by the complainant and her friends, she was not attending school and she was working in childcare. The respondent also said that the complainant looked old enough to be 19 years.
For the purposes of these reasons it is not necessary to address in any detail why the sentencing judge disbelieved the respondent and preferred the evidence of the complainant’s mother, finding that the respondent knew relatively soon after the relationship commenced in October 1999 that the complainant was nearly 16 years.[1] In addition, during 1999 the respondent told the complainant to tell others that she was 17 years and he initially deceived the complainant’s mother by not disclosing the true nature of their sexual relationship.[2]
[1] R v Dyett [2022] SADC 6.
[2] R v Dyett [2022] SADC 6, [128].
Nonetheless, before the complainant turned 16 her mother knew the true nature of the relationship and it continued with her knowledge and acquiescence. The sentencing judge accepted that at the age of 21, when the offending commenced, the respondent may have been more immature than his years because of difficulties earlier encountered with his mental health. Nonetheless, he knew that what he was doing was wrong.
The complainant’s victim impact statement disclosed significant ongoing psychological trauma as well as depression, anxiety and a post‑traumatic stress disorder. She described emotional detachment and flashbacks. She told the sentencing judge that she had issues relating to trust and negative perceptions of her own self-worth, which adversely impacted upon her relationships.
The circumstances of the offender
The respondent is now 44 years. He left school after year 10 but suffered from symptoms of a generalised thought disorder for around two years, resulting in admission to the Boylan Ward at the Women’s and Children’s Hospital.
The respondent’s difficulties contributed to the finding made by the sentencing judge that at the age of 21 he may have been more immature than his years.
The respondent’s relationship with his present domestic partner commenced in 2005, when they both worked as nurses. They have two daughters, born in 2008 and 2009, respectively. Their eldest daughter has been diagnosed with a level 3 autism spectrum disorder, requiring very substantial support. She also has a severe intellectual disability together with possible spastic paraplegia, type‑9A. She requires what was described as an “extreme level” of care attributable to her challenging behaviours which include unpredictable violent outbursts and episodes of self‑harm, accompanied by crying, screaming and emotional distress. As the respondent’s daughter is essentially unable to speak, determining how to structure her day so as to avoid her violent outbursts is particularly challenging and exhausting. Changing her nappies required both parents and, on occasion, it was necessary for the respondent to commence playing with her during the very early hours of each morning to prevent an outburst.
The respondent has spent a large amount of time working with his daughter to improve her motor skills, behaviour, and speech. There was material before the sentencing judge to support the proposition that this daughter is having increased difficulties in the absence of her father. In addition, the respondent was the sole income earner within the family and his prolonged absence will generate uncertainty about how the family will cope.
The approach of the sentencing judge
As the Crown has submitted that the sentencing judge ignored relevant sentencing principles and authorities, and made a number of errors, it is necessary to carefully consider the approach he took.
The sentencing judge recorded that during the 18 months of the offending the complainant was between 15 and 16 years and the appellant was between 21 and 22 years.
The sentencing judge found that the respondent was not in a position of trust with respect to the complainant. Nonetheless he also found that the respondent exploited their “age gap and her immaturity”. During the early part of the relationship there were deceitful aspects to the respondent’s conduct because the true nature of the relationship was not initially disclosed by the respondent and the complainant to the complainant’s mother.
The sentencing judge outlined the long delay associated with the prosecution, the impact of the offending on the complainant, and the respondent’s personal circumstances. In addressing these, the sentencing judge did not overlook that the respondent had deliberately misled him on the important topic of what the respondent knew about the complainant’s age and when he knew it, whilst accepting that the respondent did not deny other, significant aspects of the relationship.
The sentencing judge acknowledged that proceedings in the Youth Court had required that the respondent be separated from his family for some months, and that this had caused a decline in the behaviour of his daughter which provided insight into the potential impact upon that child if the respondent was separated as the result of any sentence of imprisonment. The sentencing judge also acknowledged the significant strain placed upon the respondent’s domestic partner as well as potentially upon the wider family. The respondent’s domestic partner had suffered from depression and the load upon her would likely be considerable. The sentencing judge was satisfied that any prolonged separation would also adversely impact the younger daughter of their relationship.
The sentencing judge characterised the effect of separation from the older daughter of the respondent’s present relationship as “relatively serious or even extreme” with the result that it should be regarded as having a “mitigating impact upon sentence”.
Despite defence submissions to the effect that there was good reason to impose a bond, that option was rejected by the sentencing judge. Neither suspension nor home detention were available. The sentencing judge explained his approach in the following way:
… it is necessary to recognise the importance of protecting the community and the need for Courts to do what can be done to impress upon those minded to offend against children that their conduct will be taken seriously. This is not to overlook that your offence is not as serious as many others involving this offence. Although your offence occurred over 18 months, there was no breach of trust; the age difference was more limited than is commonly the case; and, for a part of a period of the offence, the victim’s mother was aware of the relationship and may have tolerated it to some degree.
After commencing with a starting point of two years’ imprisonment, the sentencing judge considered the available sentencing reduction of 40 per cent following the plea of guilty.[3] After referring to the respondent’s approach to the disputed facts hearing, which required that the complainant give evidence, and that the respondent’s evidence was rejected, a reduction in the order of 33 per cent was made.
[3] Sentencing Act 2017 (SA), s 40.
The resulting head sentence was 16 months. The sentencing judge fixed a non‑parole period of eight months for the following reasons:
In fixing your non‑parole period I recognise that you pleaded guilty, your age at the time, that you appeared to have made a positive contribution to your family over at least the last 15 years as well as a positive contribution to persons outside of your family and that you have no convictions for offences of this type. There is also of course the impact upon your eldest daughter and the family more broadly.
The Crown’s application for permission to appeal
The respondent was sentenced on 22 December 2022 and, by notice dated 12 January 2023, the Crown appealed on the sole ground that the sentence was manifestly inadequate.
Permission should only be granted to the prosecution to appeal against sentence in cases which are “rare and exceptional”.[4] Merely demonstrating error is not sufficient; the Crown will be granted permission to appeal sentence where it is necessary for the Court to maintain adequate sentencing standards, to enable idiosyncratic views of individual judges to be corrected or to correct a sentence that is so manifestly so inadequate that it amounts to an error of principle.[5] In Malvaso v The Queen Deane and McHugh JJ emphasised:[6]
[T]he 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.
[4]     Everett v The Queen (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ).
[5]     R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ).
[6]     Malvaso v The Queen (1989) 168 CLR 227, 234-235.
It may be appropriate to grant permission to appeal even though no general point of principle is established where the sentence is so far below the appropriate standard that allowing it to stand would undermine public confidence in the administration of justice.[7]
[7] R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ).
As will be seen, though the approach of the sentencing judge has been criticised in numerous respects, the application for permission rests on the proposition that the sentence is so low as to warrant intervention. This case provides no occasion to consider whether or to what extent there subsists any residual discretion.[8]
[8] R v Yaroslavceff [2022] SASCA 123, [34] (Livesey P and David JA).
The Crown’s contentions
The Crown accepted that manifest inadequacy could not be established merely by persuading the appellate court to conclude that it would have imposed a different sentence or that the sentence was markedly different from other cases.[9]
[9] Hili v The Queen (2010) 242 CLR 520, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Nonetheless the applicant contended that the sentence was out of the range of sentences that could have been imposed with the result that there must have been an error made in the exercise of the sentencing discretion even though it could not be identified.[10] The Crown criticised the following issues in the judge’s sentencing remarks in this case:
1.The failure to apply the sentencing standard laid down in R v D.[11]
2.That too much weight was given to the separation of the respondent from his children and the inevitable hardship that would follow from serious criminal offending.[12]
3.That too much weight was given to the apparent acquiescence of the complainant’s mother, together with the ostensible “consent” of the under-age complainant.[13]
4.The reduction of approximately 33 per cent on account of the guilty plea was inappropriate given the absence of contrition or remorse in the respondent, particularly given the finding that he was dishonest in the evidence he gave to the Court.[14]
5.Finally, the non-parole period is so far below that which was required to reflect appropriate deterrence and punishment for serious sexual offending that it reveals error.[15]
[10] Hili v The Queen (2010) 242 CLR 520, [60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[11] R v D (1997) 69 SASR 413, considered in Warner v The King [2022] SASCA 142.
[12] R v Wirth (1976) 14 SASR 291, 296 (Wells J); Adams (a pseudonym) v The Queen [2022] SASCA 47, [27] (Livesey P).
[13] R v Williams (1990) 53 SASR 253; Glade v The Queen [2020] SASCFC 83, [29]-[33] (Livesey J, with whom Kelly and Bleby JJ agreed); R v Butler [2022] SASCA 112 (David JA and Mazza AJA).
[14] See s 41 of the Sentencing Act 2017 (SA) and R v Bahrami (2020) 137 SASR 327.
[15] R v Creed (1985) 37 SASR 566, 568 (King CJ, with whom Cox and Olsson JJ agreed); R v Palmer [2016] SASCFC 34, [23]-[26] (Stanley J, with whom Kourakis CJ and Doyle J agreed); R v McIntyre (2020) 138 SASR 17, [83] (Doyle J, with whom Stanley and Hughes JJ agreed).
The Crown contended that the sentence failed to reflect important sentencing considerations, being general deterrence, adequate punishment, recognition of the significant psychological harm caused to the victim which was ongoing and the community’s abhorrence and condemnation of offending and the need for public denunciation of the conduct.
Before addressing these suggested errors, it is necessary to observe that a complaint about weight will rarely demonstrate an error in the exercise of discretion, though a complaint about weight may support a submission that the sentence imposed was manifestly excessive or, as in this case, inadequate.[16]
The determination of the application for permission to appeal
[16] See for example, R v Lutze (2014) 121 SASR 144, 154 [47] (Vanstone and Parker JJ); Lee v The State of Western Australia [2022] WASCA 137, [72]-[76] (The Court).
The suggested specific errors

It is necessary to commence with the proper characterisation of the offending and whether this a case governed by the sentencing standard laid down in R v D.[17]
[17] R v D (1997) 69 SASR 413.
It is well-recognised that the sentencing standard in R v D applies to sexual offending against children involving unlawful sexual intercourse by offenders in positions of trust and authority. That is so regardless whether the position of trust and authority is an informal one, such as where it is the product of a large disparity in age.[18] Whilst the standard has been applied on many occasions to child sexual offending where an ongoing course of conduct is involved,[19] the common feature is that the offenders have abused positions of trust and authority.[20]
[18] R v Chesterman [2017] SASCFC 31, [46] (Doyle J, with whom Kelly and Parker JJ agreed): “there is often some level of abuse of trust even …where the adult offender does not hold any formal position of trust… The adult will often have assumed a position of authority and influence.”
[19] R v Quinn [2012] SASCFC 102, [29]-[32] (Gray J, with whom Anderson and Stanley JJ agreed).
[20] Warner v The King [2022] SASCA 142, [20] (Kourakis CJ), [79] (Livesey P); [118] (Doyle JA).
This is not a case involving sexual intercourse by an offender who has abused a position of trust and authority. In this case the prosecution agreed with the submission made on behalf of the respondent to the sentencing judge that there was no breach of trust and this was not a standard case falling within R v D. That concession informed the finding made by the sentencing judge.
This therefore is not a case coming within the sentencing guidance provided by R v D and, accordingly, it cannot be said that the starting point of 10 years’ imprisonment which applies where the complainant is over the age of 14 years applies to this case.[21]
[21] Warner v The King [2022] SASCA 142, [77]-[78] (Livesey P), [121] (Doyle JA).
Nonetheless, it must also be acknowledged that the sentencing Judge was confronted with an unusual and difficult sentencing exercise involving an ongoing unlawful sexual relationship. It will be necessary to return to this issue when addressing the complaint of manifest inadequacy.
Whilst the approach of the sentencing judge regarding the effect of the separation between the respondent and his younger children is criticised, this criticism fails to acknowledge the clear finding that the likely hardship caused was serious or extreme and therefore of a kind which could be taken into account by way of mitigation.[22] It cannot be said that the likely hardship to the respondent’s family should merely be regarded as coming within the ordinary consequences of incarceration.
[22] Adams (a pseudonym) v The Queen [2022] SASCA 47, [50]-[56] (Livesey P), [97]-[101] (Doyle JA); [103] (Bleby JA).
Neither the ‘consent’ of the complainant nor the acquiescence of her mother could render the respondent’s conduct lawful. It must also be accepted that the ostensible ‘consent’ of the complainant and her mother’s acquiescence could not properly be regarded as mitigatory.[23] However, these were matters which reflected on the nature of the relationship. They tended to demonstrate that the offending was less grave than other instances of this kind of offending, particularly given the absence of a large disparity in age and the absence of any abuse of a position of trust and authority. As the Victorian Court of Appeal has explained:[24]
At the other end of the scale, there are exceptional cases — for example, in a relationship between a 15 year old girl and an 18 year old boy — where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced…
[23] R v Williams (1990) 53 SASR 253, 254 (King CJ); Glade v The Queen [2020] SASCFC 83, [29]-[33] (Livesey P, with whom Kelly and Bleby JJ agreed).
[24] Clarkson v The Queen (2011) 32 VR 361, 365 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
Indeed, the respondent’s relative immaturity and youth were also matters of mitigation.[25] The prosecution agreed before the sentencing Judge that the age of the respondent was a significant matter.
[25] R v McGaffin (2010) 206 A Crim R 188, [69] (White J, with whom Doyle CJ agreed): “courts recognise that the young and immature are more prone to ill-considered or rash decisions; or because they consider young offenders may not have appreciated fully the nature, seriousness and consequences of the criminality involved in their conduct…”.
It cannot be said that the sentencing judge erred in point of principle by having regard to the circumstances of the offending, including the nature of the relationship which existed between the respondent and the complainant.
So far as the reduction made for the guilty plea, it is difficult to see why a reduction of around one third suggests error. True it is that the utilitarian benefits of the guilty plea were to some extent undermined by the necessity for a disputed facts hearing, and the finding of dishonesty undermined the scope for any finding of contrition. Nonetheless, the Judge acknowledged the relevant factors and exercised what remained a broad discretion, denying the respondent the benefit of the maximum available reduction of 40 per cent. That other judges may have approached the reduction differently is not the test. It cannot be said that the reduction which was made entailed any error or was such as to undermine public confidence in the administration of justice.[26]
[26] R v Bahrami (2020) SASR 327, [95] (Livesey J, with whom Bleby J agreed [153]).
The specific criticisms made by the Crown should each be rejected. In some respects, they represent a departure from the approach taken before the sentencing judge. It is next convenient to consider the complaint of manifest inadequacy.
The complaints of manifest inadequacy
When the sentence is considered as a whole, it must be acknowledged that the head sentence and non-parole period are appreciably lower than might ordinarily be imposed. Neither of the cases referred to by the respondent, R v Temby,[27] and R v Butler,[28] are fairly comparable given the ongoing nature of the sexual relationship in this case.
[27] R v Temby [2003] SASC 230, two counts of unlawful sexual intercourse between a 15 year old complainant and a 22 year old offender, nearly 6 months apart in the course of a relationship. The appeal court sentenced the appellant to 17 weeks and 1 day, which resulted in the appellant’s release on the day of the appeal.
[28] R v Butler [2022] SASCA 112, two counts of unlawful sexual intercourse between a 15 year old complainant and a 23 year old offender, who was in a position of trust and authority. The Court of Appeal commenced with a sentence of 3 years’ imprisonment.
However, as mentioned, this was an unusual and difficult sentencing exercise. The seriousness of the offending, and the extended course of the respondent’s conduct, needed to be weighed against the mitigatory features of the offending associated with the relative ages of the respondent and the complainant, and the respondent’s youth and immaturity.
As well, a very significant consideration was the respondent’s successful rehabilitation, undertaken during the twenty years between the time of offending and sentence. It was necessary for the sentencing judge to acknowledge and address the long delay between the offending and sentence, particularly after police were first involved in 2007, more than fifteen years ago.
As has been recognised, unnecessary delay combined with a substantial change in the respondent’s personal circumstances, may play a dominant role in the determination of the appropriate sentence, particularly where, as here, the respondent appears to have rehabilitated:[29]
… 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.
[29] R v Todd [1982] 2 NSWLR 517, 520 (Street CJ, with whom Moffitt P and Nader CJ at CL agreed), approved by the High Court in Mill (1988) 166 CLR 59, 65-66. See also Pickard v The Queen [2011] SASCFC 134, [95] (Blue J, with whom David J agreed); R v R, AW (2012) 113 SASR 179, [71]-[76] (Peek J, with whom Nyland J agreed); J, AD v The Queen [2020] SASCFC 73, [32]-[36] (Stanley J, with whom Kourakis CJ and Peek J agreed).
It is evident that following his offending the respondent embarked on a new relationship, a successful working life and raised and supported his family. An important feature of that was the enormous contribution he made to the care and support of his younger daughters, particularly his daughter affected by autism. The sentencing judge was entitled to find that the respondent had made a very positive contribution to the community.
Whilst general deterrence remained of importance, personal deterrence was of little importance when sentencing the respondent.
Whilst the sentence might be thought low, it is difficult to say that it is manifestly inadequate nor, in the unusual circumstances of this case, so low as to undermine public confidence in the administration of justice.
As for the non-parole period, it cannot be said that a period of one half of the head sentence of itself suggests error given the various matters adverted to by the sentencing judge. The allowance of one half of the head sentence falls within the recognised range of between one half and three quarters of the head sentence.[30] It cannot be said that this feature, of itself, is so low as to undermine public confidence in the administration of justice.
[30] R v McIntyre (2020) 138 SASR 17 [84]-[85] (Doyle J, with whom Stanley and Hughes JJ agreed).
Conclusion
The unusual and difficult features of this case were addressed by the sentencing judge’s exercise of a broad sentencing discretion in a manner that does not reveal any error, and certainly no error along the lines of the criticisms made by the Crown. As King CJ explained in R v Osenkowski:[31]
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. The proper role for prosecution appeals, in my view, is to enable the courts 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.
[31] R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ, with whom White J agreed).
Even if it could be said that the sentence was manifestly inadequate, this is not the kind of rare and exceptional case in which it would be appropriate to grant the prosecution permission to appeal against sentence.
In particular, it is not necessary for this Court to intervene so as to address any question of principle or to maintain adequate standards of punishment for the kind of offending raised by this case.[32]
[32] R v Nemer (2003) 87 SASR 168, [22]-[24] (Doyle CJ); R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ, with whom White J agreed). See generally Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321.
The unusual and difficult features of this case militate against the view that the sentence is one which has the capacity to undermine public confidence in the administration of justice.
The application for permission to appeal sentence should be dismissed. As the cross-appeal is not pressed, it is appropriate to dismiss that as well.