R v Harris

[2023] SASCA 129

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v HARRIS

[2023] SASCA 129

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)

30 November 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

Crown appeal against sentence.

The respondent pleaded guilty to one count of unlawful sexual intercourse. 

The offending involved one brief episode of penile-vaginal sexual intercourse on 10 December 2022.  At that time the respondent was 18 years and three months, and the complainant was 15 years and 11 months.  They had been in a relationship for around two months, during which they had engaged in various consensual sexual activity, but not penile-vaginal intercourse.

The sentencing judge discharged the respondent without recording a conviction, and without imposing any other penalty, on condition that he enter into a bond in the sum of $50 to be of good behaviour for 18 months on various conditions.  In the event of breach, the respondent is at risk of being called up for sentence.

The application for permission to appeal focussed on the refusal by the sentencing judge to impose a conviction.

The Court held (dismissing the application for permission to appeal):

1.There is a clear difference between a case of offending by a mature adult against a child of four or 13 years, particularly where it occurs in breach of a position of trust and authority, as against offending by a young adult of 18 against a child of 15 years and 11 months where there is no exploitation of a position of trust and authority.

2.In many cases of unlawful sexual intercourse the ordinary penalty will involve both a conviction and a sentence of imprisonment.  However, in this case the offending occurred in “prescribed circumstances”, and it was open to suspend any sentence of imprisonment, order that it be served on home detention, or impose a bond to be of good behaviour.

3.The power to refrain from recording a conviction is an exception to the ordinary rule, and must be exercised sparingly.  The circumstances of the offending and the offender did not in this case warrant the favourable exercise of discretion to refrain from recording a conviction. 

4.Nonetheless, the failure to record a conviction has not produced a sentence which is so low and disproportionate to the seriousness of the offending, and the circumstances of this young offender, that it undermines public confidence in the administration of justice.

Child Sex Offenders Registration Act 2006 (SA) s 6; Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Procedure Act 1921 (SA) ss 150 and 157; Sentencing Act 2017 (SA) ss 11, 71, 96 and 97; Spent Convictions Act 2009 (SA), referred to.
Arnold v Samuels (1972) 3 SASR 585; Clarkson v The Queen (2011) 32 VR 361; Daley v The King [2023] SASCA 29; Everett v The Queen (1994) 181 CLR 295; Glade v The Queen [2020] SASCFC 83; Goldsworthy v Police [2016] SASC 85; Griffiths v The Queen (1977) 137 CLR 293; McManus v Police [2019] SASC 206; R v Beaumont [2023] SASCA 128; R v Briese; ex parte Attorney-General [1998] 1 Qd R 487; R v Butler (A pseudonym) [2022] SASCA 112; R v Clark (No 2) (2008) 186 A Crim R 40; R v D (1997) 69 SASR 413; R v Dyett [2023] SASCA 41; R v Friesen [2020] 1 SCR 424; R v King [2009] NSWCCA 117; R v Lomas & Symmons [2005] SASC 435; R v McIntyre (2020) 138 SASR 17; R v MJJ (2013) 117 SASR 81; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Stubberfield (2010) 106 SASR 91; R v Taylor; R v Teekens [2022] SASCA 79; R v Williams (1990) 53 SASR 253; R v Yaroslavceff [2022] SASCA 123; Warner v The King [2022] SASCA 142, considered.

R v HARRIS
[2023] SASCA 129

Court of Appeal – Criminal:    Livesey P, Lovell and Bleby JJA

THE COURT:

Introduction

1. The Director of Public Prosecutions (SA) (the Director) has sought permission to appeal against sentence pursuant to ss 150 and 157 of the Criminal Procedure Act 1921 (SA) (CPA), on the sole ground that the sentence is manifestly inadequate.

2. Following his plea of guilty on 13 April 2023, the respondent was committed to the District Court for sentence on one count of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), which carried a maximum penalty of imprisonment for 15 years.

3. The offending involved one brief episode of penile-vaginal sexual intercourse on 10 December 2022.  At that time the respondent was 18 years and three months, and the complainant was 15 years and 11 months.  They had been in a relationship for around two months, during which they had engaged in various consensual sexual activity, but not penile-vaginal intercourse. 

4. Pursuant to s 97(1) of the Sentencing Act 2017 (SA) (the Sentencing Act), the sentencing judge discharged the respondent without recording a conviction, and without imposing any other penalty, on condition that he enter into a bond in the sum of $50 to be of good behaviour for 18 months on various conditions.  In the event of breach, the respondent is at risk of being called up for sentence.

5. The Director focussed his application on the refusal by the sentencing judge to impose a conviction, though it is not conceded that a conviction and a bond were the appropriate penalty.  The Director submitted that there should have been a conviction together with a sentence of imprisonment which was either suspended or served on home detention.  At the callover hearing prior to the hearing of the application for permission to appeal, counsel for the Director made it clear that immediate imprisonment was not sought.

   Disposition of the application

6. In many cases of unlawful sexual intercourse the ordinary penalty will involve both a conviction and a sentence of imprisonment.[1]  However, as it is common ground that the offending in this case occurred in “prescribed circumstances”, it was open to suspend any sentence of imprisonment or order that it be served on home detention.[2] These provisions of the Sentencing Act supplement the exceptions recognised by the CLCA where the offender and the complainant are close in age.[3]

   [1]     R v Williams (1990) 53 SASR 253, 254; Glade v The Queen [2020] SASCFC 83; R v Butler (A pseudonym) [2022] SASCA 112; R v Dyett [2023] SASCA 41.

   [2]     Sentencing Act, ss 71(6) and 96(10). That is, the defendant was at the time of the offending 20 years or less; the circumstances of the offending, including the victim’s age and age difference between the defendant and the victim was such that it is appropriate for the sentence to be suspended; and the defendant was not in a position of authority in relation to the victim at the time of the offending.

   [3] See s 49(4) and s 49(5a) of the CLCA, addressed in more detail below.

7. Where prescribed circumstances are established, it will often be appropriate to consider those sentencing options.  The course which is taken must nonetheless depend on the facts and circumstances of the case before the sentencing court.  These sentencing options may be rendered inappropriate, especially if the case requires that the sentencing court give emphasis to sentencing considerations such as community safety, general and personal deterrence, and punishment.

8. The circumstances of this case are not typical of those that often come before the Court concerning s 49 of the CLCA. The respondent and the complainant were two years and three months apart in age. As well, this case did not feature a number of the aggravating features sometimes seen. The respondent is a young offender whose personal circumstances were very favourable and suggested good reason to be optimistic about his future rehabilitation. Personal deterrence is not of any real significance in this case.

9. Whilst the sentence is manifestly inadequate in that a conviction should have been recorded, the sentence is not so egregiously low that it will undermine public confidence in the administration of justice.[4]  It has not been demonstrated that it is necessary for this Court to intervene.  Permission to appeal the sentence should be refused. 

   [4]     This case provides no occasion to consider whether or to what extent there subsists any residual discretion, see R v Yaroslavceff [2022] SASCA 123, [34] (Livesey P and David JA).

   The circumstances of the offending

10. During September 2022, the respondent and the complainant met on social media when the complainant added the respondent to one of her social media accounts.  During October 2022, the complainant invited the respondent to her family home and, with her mother’s consent, they consumed alcohol and the respondent stayed the night.  Thereafter, they saw each other on most weekends.

11. The sentencing judge accepted that the respondent was a caring, nurturing, and loving boyfriend.  Their sexual relations prior to the charged conduct did not involve penile-vaginal intercourse.[5]  Some of the messaging from the complainant to the respondent revealed overt sexual references.  The complainant reassured the respondent that her mother really liked him, as he was different because he did “not do drugs” and had a good job.

    [5] Though some of their activity comprised, for example, fellatio and came within the statutory definition of “sexual intercourse”, see s 5 of the CLCA:

    “sexual intercourse” includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—

    (a)penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object; or

    (b)fellatio; or

    (c)cunnilingus,

    and includes a continuation of such activity …

12. On 10 December 2022, the respondent and the complainant went to a family gathering where alcohol was consumed under parental supervision.  At around 11:00 pm, they went to the respondent’s home in an Uber. After a time, the respondent initiated sexual activity and they proceeded to engage in penile-vaginal sexual intercourse.  The encounter lasted less than 15 minutes.  It stopped at the request of the complainant.  They went back to the complainant’s home before midnight, where they slept in the same bed. 

13. The following morning on 11 December 2022, the complainant told her mother about the sexual encounter, which resulted in the complainant’s mother telling the complainant that she could not see the respondent.  The complainant ended their relationship with a text message to the respondent.  The respondent replied with a number of messages, explaining that he loved the complainant.

14. The respondent was arrested later that day and voluntarily participated in a record of interview.  He made full and frank admissions.  He gave police the passcode for his mobile phone. 

15. The sentencing judge had regard to the victim impact statements from the complainant and her mother which revealed what they described as the huge impact of the offending on the complainant and her family.  It had affected both her schooling and working, as well as her capacity to interact with her friends and generally.  The complainant’s mother found it necessary to take many days off work to comfort her daughter.  She described her daughter as a different girl, who now rarely leaves home.

    The circumstances of the offender

16. The respondent had a difficult upbringing during which his mother re‑partnered with another woman who became abusive, both physically and emotionally, towards the respondent’s mother.  He was a witness to domestic violence and was often physically abused.  He spent much of his childhood with his “nanna” and his schooling became disjointed because he was moved around.  The respondent left school in year 11. 

17. The respondent has remained in stable employment.  His employer provided a favourable reference concerning the respondent’s employment over a two‑year period.  His employer anticipated a potential leadership role given the respondent’s commendable work ethic and attitude. 

18. At the time of sentence, the respondent remained 18 and was about to turn 19 years.  He had written a letter of apology which the sentencing judge accepted as genuine and heartfelt.  The respondent had no criminal record of any kind.  Nonetheless, the admitted and uncharged prior sexual activity involving the complainant put the respondent’s offending into context.

    The approach of the sentencing judge

19. When this matter came before the sentencing judge the prosecutor, perfectly properly, explained that the offending occurred in “prescribed circumstances”.  She also submitted that “all sentencing dispositions are open to your Honour in this matter”.  The prosecutor went on to contend that the seriousness of the offending warranted a sentence of imprisonment though there where circumstances favourable to the respondent which supported the suspension of that sentence. 

20. The submissions for the respondent emphasised the respondent’s young age, the existence of a genuine relationship with the complainant and the attitude of the parents. This last point was not made so as to suggest fault by anyone apart from the respondent.  Emphasis was then given to the circumstances of the offending, the involvement of alcohol with parental consent, as well as the strong support from the respondent’s family and employer. 

21. The respondent’s counsel pressed for a bond pursuant to s 97 of the Sentencing Act and he relied on those authorities which supported giving greater emphasis to rehabilitation, rather than to deterrence, when sentencing a youthful offender. 

22. In reply, the prosecutor was specifically asked by the judge whether it was outside the sentencing court’s discretion to utilise s 97. The prosecutor responded that all sentencing dispositions were open to the sentencing judge, though the Director’s position was that a sentence of imprisonment was warranted.

23. In her sentencing remarks, the sentencing judge observed that the offending occurred in the context of a short but respectful and loving relationship, condoned to some extent by the parents or caregivers of the complainant and the respondent. 

24. The sentencing judge considered that the age difference between the respondent and the complainant was not significant as they were both teenagers and the respondent was not in any position of authority.  He had not groomed the complainant, nor had he exploited her age or immaturity.  The sentencing judge accepted that the complainant was a willing and active participant in the relationship, including in earlier sexual activity. 

25. Whilst the respondent took a leading role in the sexual encounter the subject of the charge, the sentencing judge accepted that the respondent was careful to ensure that the complainant was consenting (in what her Honour described as a “non‑legal sense”), and the respondent immediately stopped when the complainant indicated that she was not feeling well.  The sentencing judge explained: 

    The purposes underlying the offence of unlawful sexual intercourse include protecting young people from predatory conduct by older people and the adverse physiological and psychological consequences that follow.  An associated purpose is to protect young people from the consequences of their own immaturity.  General deterrence and the need to protect the young is an important matter in sentencing.

    I am satisfied that your offending occurred in prescribed circumstances. This is a relevant matter because it means that the discretion to suspend any sentence of imprisonment is available in your case. Parliament plainly intended to ensure that the statutory prohibition upon the imposition of a suspended sentence did not operate in circumstances where the exercise of this sentencing discretion was otherwise appropriate.

26. The sentencing judge observed that good behaviour bonds had previously been imposed for sexual offending against children, although the usual outcome was imprisonment.  Her Honour referred to McManus v Police[6] and R v Lomas & Symmons.[7]  The sentencing judge explained why in the case before her emphasis should not be placed upon general deterrence: 

    Given your unblemished record, genuine contrition, excellent work ethic and family support, I am satisfied that personal deterrence has little role to play in sentence.  I consider your offending to be very much at the lower end of the scale and it is not an example of an older man preying on and exploiting a child.  While general deterrence is a very important sentencing principle for sexual offences against children, I consider that your offending is sufficiently atypical that it is not an appropriate medium for a sentence that places emphasis upon general deterrence.

    [6]     McManus v Police [2019] SASC 206 (Bampton J).

    [7]     R v Lomas & Symmons [2005] SASC 435 (Debelle, Besanko and Vanstone JJ).

27. The sentencing judge then had regard to the circumstances of the offending, as well as the respondent’s personal circumstances, before expressing the view that good reason existed to discharge the respondent on condition that he enter into a bond to be of good behaviour.

28. The sentencing judge then considered whether to record a conviction.  Her Honour weighed the benefit to the respondent in exercising her discretion favourably, against the public interest in recording a conviction.  The sentencing judge had regard to various of the relevant authorities and concluded:[8] 

    While there is no suggestion that your current employment is in jeopardy if a conviction was to be recorded, you are a very young man with a long future of employment ahead of you.

    I consider the social prejudice against a conviction for an offence involving sexual offending against a child, where the conviction says nothing about the actual circumstances of the offending, to be sufficiently grave that it is likely that it will put you at risk of continual punishment in the future well after appropriate punishment has been imposed.  The oppression this would likely cause would be counter-productive to your rehabilitation and disproportionate to the circumstances of your offending.

    Accordingly, I am satisfied that good reason exists not to record a conviction when exercising my power to impose a bond to be of good behaviour under s 97.

    [8]     R v Briese; ex parte Attorney-General [1998] 1 Qd R 487 (Thomas, White and Dowsett JJ); R v Clark (No 2) (2008) 186 A Crim R 40, [40] (White J); R v Stubberfield (2010) 106 SASR 91 (Gray, Sulan and David JJ).

29. The 18-year-old respondent was discharged on condition that he entered into a bond to be of good behaviour, which put him at risk of being sentenced in the event he breached the terms of that bond.

    The consequences of imposing a conviction

30. As mentioned, this is a case involving “prescribed circumstances” within the meaning of the Sentencing Act.  It is also a case of “prescribed circumstances” within the meaning of the Child Sex Offenders Registration Act 2006 (SA).[9] 

    [9] By sch 1,cl 1(2), an offence occurred in “prescribed circumstances” if the victim consented to the conduct constituting the offence and, the offender was at the time of the offence 18 years and the victim was not less than 15 years.

31. For the purposes of determining whether there are prescribed circumstances under sch 1, cl 1(2) of the Child Sex Offenders Act 2006 (SA), it is relevant to consider whether a person as young as 15 years has “consented to conduct constituting the offence”:

    (2) For the purposes of this Schedule, an offence occurred in prescribed circumstances if—

    (a)     the victim consented to the conduct constituting the offence; and

    (b)     either—

    (i)the offender was, at the time of the offence, 18 years of age and the victim was not less than 15 years of age; or

    (ii) the offender was, at the time of the offence, 19 years of age and the victim was not less than 16 years of age.

1. If the offending occurred in prescribed circumstances, the result is that though an offence against s 49(3) of the CLCA is a “class 1 offence”, it is not treated as an offence of that kind for the purposes of the Child Sex Offenders Registration Act 2006 (SA).[10] Accordingly the registration requirements under s 6,[11] and the reporting obligations under s 11, do not apply.

   [10]   Child Sex Offenders Registration Act 2006 (SA), sch 1, cl 2(e).

   [11]   Which otherwise apply even where an order is made requiring a person to enter into a bond.

2. Importantly, by s 11(4)(b) of the Sentencing Act, a sentencing court may not take into account the consequences that may arise under the Child Sex Offenders Registration Act 2006 (SA):

   A court must determine the sentence for an offence without regard to—

   (a)the fact that this Act or another Act prescribes a mandatory minimum non-parole period in respect of the offence; or

   (b)any consequences that may arise under the Child Sex Offenders Registration Act 2006; or

   (c)the good character or lack of previous convictions of the defendant if—

   (i)    the offence is a class 1 or class 2 offence within the meaning of the Child Sex Offenders Registration Act 2006; and

   (ii)     the court is satisfied that the defendant's alleged good character or lack of previous convictions was of assistance to the defendant in the commission of the offence.

3. A sentencing judge considering whether regard may be given to good character evidence or lack of previous convictions under s 11(4)(c) of the Sentencing Act must consider whether the offending constituted a class 1 or class 2 offence under the Child Sex Offenders Registration Act 2006 (SA). Where an offender is 18 or 19 years and a complainant is 15 or 16 years this will necessarily entail consideration as to whether the offending arose in prescribed circumstances, which involves consideration as to whether the complainant consented.

4. These provisions underscore just some of the protections Parliament has imposed in order to safeguard children from sexual offending, together with recognition that some of these safeguards do not apply, or at least do not apply in the same way, where the offender and the complainant are close in age.

   The Director’s submissions

5. The Director commenced by giving emphasis to the Victim Impact statements of the complainant and her mother, earlier set out.  The Director submitted that the observations of the sentencing judge demonstrated that she had used the acquiescence of the complainant as a mitigating factor, or at least she had allowed the nature of the relationship to obscure the harm or the risk of harm to the complainant. 

6. The Director submitted that the sentencing Judge overlooked the conduct of the respondent, describing the complainant’s acquiescence as at best equivocal. While the respondent had only recently turned 18, he was of a level of maturity that meant there was a power imbalance that he exploited. While the Director accepted that the respondent’s conduct was at the lower level of seriousness, the law required that he not take advantage of the situation.

7. After emphasising the principles applicable to prosecution appeals, the Director attacked the refusal to record a conviction.  After referring to a number of the authorities,[12] the Director submitted that there was nothing in the present case to indicate that the respondent fell into the category of an offender who will be continually punished well after appropriate punishment has been received.  For example, the respondent will be able to take advantage of the Spent Convictions Act 2009 (SA). When addressing the seriousness of the offending, the Director emphasised a number of matters by reference to a Canadian decision, R v Friesen.[13]These matters included: 

   ·The necessity to give weight to general deterrence because “sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities”.[14] 

   ·Sentencing courts must protect the “personal autonomy, bodily integrity, sexual integrity, dignity and equality of children”.[15] 

   ·Sentencing courts must focus on the emotional and psychological harm sustained in addition to any physical harm, for these often particularly pronounced for children and can interfere with self-fulfilment and healthy and autonomous development.[16] 

   ·In addition to any actual harm, the sentencing court should consider any reasonably foreseeable harm the complainant may suffer in the future.[17] 

   [12]   R v Taylor; R v Teekens [2022] SASCA 79, [20]-[22]; Daley v The King [2023] SASCA 29, [36]; R v Briese; ex parte Attorney General [1998] 1 Qd R 487, 491-493 (Thomas and White JJ).

   [13]   R v Friesen [2020] 1 SCR 424.

   [14]   R v Friesen [2020] 1 SCR 424, [5].

   [15]   R v Friesen [2020] 1 SCR 424, [51].

   [16]   R v Friesen [2020] 1 SCR 424, [56], [58], [79]-[84].

   [17]   R v Friesen [2020] 1 SCR 424, [79]-[84].

8. Relying upon the Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report, the Director submitted that the need for deterrence is marked by the significant and long-lasting psychological, emotional and, sometimes, physical harm caused to victims of sexual offending.[18]

   [18]   Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (2017), vol 3, pp. 85, 102; R v MJJ (2013) 117 SASR 81, [84].

9. The Director also submitted that even without direct evidence it may be assumed that the victims of child sexual offences will be at risk of suffering serious psychological and emotional harm.[19]  It was submitted that reasonably foreseeable harm will also be sustained by the community, including the complainant’s mother, as a result of what the Director described as the “ripple effect of sexual violence against children”.[20] 

   [19]   R v King [2009] NSWCCA 117, [40]-[41]; R v McIntyre (2020) 138 SASR 17, [58] (Doyle J, with whom Stanley and Hughes JJ agreed).

   [20]   R v Friesen [2020] 1 SCR 424, [61]-[63].

10. In these circumstances, the Director submitted that sexual offending against children, including young teenagers, is inherently serious and requires a strong response in terms of deterrence, punishment, and the need to ensure the adequate protection of the community.[21]

    [21]   Citing, amongst others, R v McIntyre (2020) 138 SASR 17, [45] (Doyle J, with whom Stanley and Hughes JJ agreed) and R v D (1997) 69 SASR 413, 423-424 (Doyle CJ).

11. The Director also relied upon R v Friesen on the issue of the complainant’s acquiescence or participation in the offending.  Whilst acknowledging that a number of authorities have recognised that this cannot be regarded as mitigatory,[22] he submitted that the Supreme Court of Canada had set out the relevant principles.  The Supreme Court in R v Friesen said:[23] 

    Some courts have, while acknowledging that a victim’s participation is not a mitigating factor, nevertheless treated it as relevant to determining a fit sentence. This is an error of law: This factor is not a legally relevant consideration at sentencing. The participation of a victim may coincide with the absence of certain aggravating factors, such as additional violence or unconsciousness. To be clear, the absence of an aggravating factor is not a mitigating factor.

    We would add the following to assist judges as they give practical effect to Parliament’s decision that sentences for sexual offences against children must increase. First, some courts have seemed to equate a child’s non-resistance with “de facto consent”. In addition to analogizing a child’s participation to consent, this language hints at the belief that submission or a failure to resist constitutes consent, which is a pernicious myth even for adults. Judges’ analyses need to be clear that there is no defence of “implied consent” in Canadian law and that a failure to resist or silence or passivity does not constitute consent.

    …

    Third, in some cases, a victim’s participation is the result of a campaign of grooming by the offender or of a breach of an existing relationship of trust. In no case should the victim’s participation be considered a mitigating factor. Where a breach of trust or grooming led to the participation, that should properly be seen as an aggravating factor. Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality. As Feldman J.A. wrote in P.M., to exploit young teenagers during this period by leading them to believe that they are in a love relationship with an adult “reveals a level of amorality that is of great concern”.

    Finally, a victim’s participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. Adults, not children, are responsible for preventing sexual activity between children and adults. We would adopt the words of Fairburn J. (as she then was) in R. v. J.D., 2015 ONSC 5857:

    Nor is it a mitigating factor that a child appears to acquiesce or even seek out the sexual attention of an adult. Where children appear to be seeking out such attention, it is often an outward manifestation of the child’s confusion arising from personal difficulties. It is the legal responsibility of adults who are faced with children who already exhibit signs of struggle, to protect them. Adults who see these situations as opportunities to satisfy their own sexual urges, are no better or worse than those who take steps to actively seek out their victims.

    [22]   R v Williams (1990) 53 SASR 253, 254 (King CJ, with whom Millhouse and Olsson JJ agreed); Glade v The Queen [2020] SASCFC 83, [29], [33] (Livesey J, with whom Kelly and Bleby JJ agreed); R v Dyett [2023] SASCA 41, [43].

    [23]   R v Friesen [2020] 1 SCR 424, [150]-[151],[153]-[154].

12. The Director described R v Friesen as a case drawing together in one judgment the principles relating to sentencing offenders for sexual offences against children. The Director submitted that R v Friesen did not stand for any new principle but rather, in a single judgment, it helpfully articulated the same principles that could be found in the authorities in South Australia.[24] 

    [24]   That submission was also made and recently accepted by this Court in R v Lian [2023] SASCA 122.

13. Finally, though acknowledging the respondent’s youth and immaturity, the Director contended that the respondent knew that the complainant was only 15 years and 11 months, and that he was more mature and experienced, taking advantage of his greater experience. 

    The respondent’s submissions

14. The respondent reiterated the submissions made before the sentencing court, emphasising the absence of evidence of actual harm sustained by the complainant, as well as the reasons why it was appropriate to give emphasis to his rehabilitation.

    Principles relating to prosecution sentence appeals

15. This Court has recently had occasion to consider a number of prosecution appeals. There is no issue about the applicable principles. The restraint exercised in connection with whether to grant permission to the prosecution to appeal sentence under ss 150 and 157 of the Criminal Procedure Act 1921 (SA) reflects the long-standing concern that a defendant ought not be unduly exposed to a form of double jeopardy.

16. Whether to grant permission engages questions of high public policy which operate as a “stringent barrier” to the grant of permission to appeal.[25]  Whilst an appeal court cannot intervene merely because it would have exercised the sentencing discretion differently, and it is necessary to identify material error in the exercise of the sentencing discretion, mere error does not justify appellate intervention on a prosecution appeal.[26] 

    [25]   R v Henderson (2023) 104 MVR 68, [34] (Livesey P and David JA).

    [26]   Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [8]-[21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Green v The Queen (2011) 244 CLR 462, [1]-[2] (French CJ, Crennan and Kiefel JJ); CMB v Attorney-General(NSW) (2015) 256 CLR 346, [54]-[56] (Kiefel, Bell and Keane JJ) and Cumberland v The Queen (2020) 94 ALJR 656, [4]-[6], [33].

17. The grant of permission to the prosecution to appeal sentence is reserved for those cases where it is necessary for this Court to intervene and determine a matter of principle, to establish or maintain adequate sentencing standards or to correct idiosyncratic views expressed by individual sentencing judges.[27]  Moreover, it may be appropriate to grant permission where the sentence is so manifestly inadequate that it amounts to an error of principle, as well as where the sentence is so low and disproportionate to the seriousness of the offending that it may undermine public confidence in the administration of justice.[28] 

    [27]   R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ); R v Payne (2004) 89 SASR 49, [86]; Munda v Western Australia (2013) 249 CLR 600, [87] (Bell J).

    [28]   Everett v The Queen (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ); Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ); R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ).

18. The requirement that permission to appeal sentence will only be granted to the prosecution in “rare and exceptional” cases reinforces the public policy features which must be observed by the appeal court, as well as the exceptional nature of the course the appeal court is being invited to take.  This requires an analysis which is both qualitative and comparative.[29]  It is necessary for the prosecution to demonstrate that considerations relating to double jeopardy are outweighed by the need for this Court’s principled intervention. 

    [29]   R v Yaroslavceff [2022] SASCA 123; R v Henderson (2023) 104 MVR 68, [34] (Livesey P and David JA).

19. Moreover, it is of the first importance to recognise and respect the breadth of the sentencing discretion reposed in sentencing courts. Acknowledging that questions of degree are involved in determining whether a sentence is so inadequate that intervention is warranted on a prosecution appeal, sentences are reviewed against the requirement that sentencing judges will be afforded as much flexibility in sentencing as is consistent with the common law and statutory regime that applies.[30] 

    [30]   R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ).

20. Prosecution appeals cannot be allowed to unduly circumscribe the exercise of the broad sentencing discretion reposed in sentencing judges,[31] especially as sentencing entails individualised justice.[32] 

    [31]   R v Osenkoswski (1982) 30 SASR 212, 212 (King CJ).

    [32]   Hackett v The Queen [2021] SASCA 32, [8]; Elias v The Queen (2013) 248 CLR 483; Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ); House v The King (1936) 55 CLR 499; Barbaro v The Queen (2014) 253 CLR 58, [61] (Gageler J); Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ); R v Pham (2015) 256 CLR 550, [56] (Bell and Gageler JJ).

    The determination of the application for permission

21. The sentencing court must usually consider, weigh and give effect to a range of sentencing considerations that in most cases do not point in the same direction. Just as it would be wrong to recognise a defendant’s personal circumstances to the exclusion of any harm caused by criminal offending, the community’s proper concern about certain kinds of offending does not obviate the need for the sentencing court to weigh and carefully consider a defendant’s personal circumstances, especially those of a youthful first offender. 

22. In some cases, the protection of the community will best be achieved by facilitating the rapid rehabilitation of the offender, ensuring the offender is in a position to make a constructive contribution to the community.[33]

    [33]   R v Beaumont [2023] SASCA 128, [52]-[53] (Livesey P, Lovell and Bleby JJA).

23. The principles described in R v Friesen[34] accord with those recognised by the Court of Criminal Appeal in R v D,[35] and in subsequent decisions of this and other appeal courts.  These cases recognise the necessity for a strong sentencing response, reflecting the potential for long-term adverse consequences to the victims of child sexual abuse and the need for community protection.[36]  Associated with these considerations is the need for sentencing courts to avoid labelling the context in which abuse occurs as “loving”, or “caring” or “consensual, but not in a legal sense” for stereotypes such as these risk occluding the risk of harm and, in effect, treating the victim’s acquiescence as a form of mitigation.  To proceed in that way entails an error of law.  It has been repeatedly held that the victim’s acquiescence or “consent” is not mitigatory.[37]

    [34]   R v Friesen [2020] 1 SCR 424.

    [35]   R v D (1997) 69 SASR 413, 423-424 (Doyle CJ).

    [36]   See, for example, R v MJJ (2013) 117 SASR 81, [84] (Kourakis CJ); R v Stain [2021] SASCA 70; R v Amos [2021] SASCA 126, [36]; Warner v The King [2022] SASCA 142; R v MJR (2002) 54 NSWLR 368, [57] (Mason P); R v King [2009] NSWCCA 117, [40]-[41] (McClelland CJ at CL, with whom Grove and Howie JJ agreed). See, most recently, R v Lian [2023] SASCA 122, [99] (Kourakis CJ, with whom Lovell and Doyle JJA agreed).

    [37]   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); R v Dyett [2023] SASCA 41, [43]. See also R v Friesen [2020] 1 SCR 424, [154].

24. Whilst not detracting from the importance of these considerations and the statements of principle made in cases such as R v D and R v Friesen, it is appropriate to recognise that the circumstances of cases such as these are quite different to the circumstances of this case. Indeed, in R v Friesen itself, whilst deprecating the notion of “de facto consent”, the Court recognised that its approach was subject to statutory “close in age exceptions”.[38] 

    [38]   R v Friesen [2020] 1 SCR 424, [148].

25. The questions raised in cases such as the present where the participants are relevantly close in age may be different, or at least more nuanced, than in cases involving a marked disparity in age.  In part that may be because cases involving an offender and a complainant who are close in age may not feature the aggravating features seen in cases where there is a marked disparity in age.  Nonetheless, it must be remembered that the absence of aggravating features is not mitigatory.

26. The statutory “close in age” exceptions or “defences” reflect a judgment that consensual sexual activity between young people who are close in age should not be subject to criminal law sanctions.[39] Section 49 of the CLCA shows that the statutory lines are drawn by reference to age and whether the offender is in a position of authority. Though age is in one sense arbitrary, it reflects a broad societal expectation about when it is appropriate for young people to consent to sexual activity within the statutory definition of sexual intercourse. That is not to say that there may be no risk of harm of various kinds when young people engage in consensual sexual activity, particularly if they are immature or lacking in experience. That raises a broader set of issues which are the subject of programmes and education in most schools across the State.

    [39] See s 49(4) and s 49(5a) of the CLCA (set out below).

27. Liability under the criminal law is not determined by the attitudes of young people and their families to underage sexual activity. Those attitudes to sexual activity may be more or less strict than the lines drawn by s 49 of the CLCA. Subject to the exercise of prosecutorial discretion, those attitudes will not usually assist an offender who falls outside the statutory exceptions. They may, however, be relevant to the approach taken on sentence.

1. Indeed, even where an offender does not come within a statutory exception, if the offender and the complainant are close in age the case may exhibit some or all of the features or assumptions which underpin those exceptions.  For example, cases where the offender and the complainant are close in age, as with some cases within the statutory “close in age” exceptions, may feature young people in a genuine relationship involving mutual affection and without the manipulation or exploitation which may occur where there is a significant age disparity or the abuse of a position of authority.  Nonetheless, each case must turn on its particular facts and circumstances.

2. The “close in age” cases must be contrasted with, for example, R v D which concerned the sexual abuse of a child aged 13 years, which included sexual intercourse, by an appellant who stood in a position of both trust and authority. The appellant pleaded guilty to one count of the persistent sexual abuse of a child, his stepdaughter, contrary to s 74(1) of the CLCA, carrying a maximum penalty of life imprisonment.[40] The complainant was subjected to indecent assaults, cunnilingus, fellatio and digital penetration of her vagina on a near daily basis, over a period of two months. The Court of Criminal Appeal nonetheless concluded that the sentence of six years’ imprisonment, and a non-parole period of four years and six months, was manifestly excessive and should be set aside.  The majority, Doyle CJ and Bleby J, imposed a new sentence of five years’ imprisonment with a three year and six-month non-parole period.  Millhouse J would have imposed a new sentence of four years with a two year and nine-month non-parole period. 

   [40]   R v D (1997) 69 SASR 413. Sub-section 74(7) of the former CLCA provided: ‘A person convicted of persistent sexual abuse of a child is liable to a term of imprisonment proportionate to the seriousness of the offender's conduct which may, in the most serious of cases, be imprisonment for life’.

3. The Court in R v D addressed the proper approach to sentencing for multiple sexual offences against children which included sexual intercourse and the abuse of a position of trust and authority, together with the “appropriate standard of punishment” for offending of that kind.[41]  When imposing the new standard of imprisonment of 12 years (for children under 12 years – now under 14 years) and of 10 years (for children over 12 years – now over 14 years), Doyle CJ explained that it was “impossible to be precise”.[42]  That sentencing standard, and the cases since R v D, were recently reviewed at some length by this Court in Warner v The King.[43]

   [41]   R v D (1997) 69 SASR 413, 415 (Doyle CJ), 427-429 (Bleby J).

   [42]   R v D (1997) 69 SASR 413, 424 (Doyle CJ).

   [43]   Warner v The King [2022] SASCA 142, [64]-[80] (Livesey P). See also R v Dyett [2023] SASCA 41, [38]-[39].

4. The decision of the Supreme Court of Canada in R v Friesen concerned sexual violence (as defined) inflicted on a girl of four years by an adult stranger in the presence of her mother,[44] resulting in screams and cries which awoke another member of the household who removed the girl from the room.  The stranger threatened the mother that he would falsely accuse her of sexually abusing her one-year-old son unless she brought the girl back to him. 

   [44]   R v Friesen [2020] 1 SCR 424, [6]-[12].

5. A sentence of six years’ imprisonment, to be served concurrently with a sentence of six years’ imprisonment for attempted extortion, was restored by the Supreme Court.  As had the Court of Criminal Appeal in R v D in 1997, the Supreme Court of Canada in 2020 took the opportunity to review a number of features relevant to sentencing for the predatory sexual abuse of children. 

6. Whilst the decision in R v Friesen warrants careful consideration, there are two features in that review of particular relevance to this matter.  They concern the question of the complainant’s consent and any attitude disclosed by the parents of the complainant.  Consistently with R v Friesen, and as earlier mentioned, the cases in this jurisdiction have consistently held that neither feature is mitigatory. The inability of a child to lawfully consent to sexual intercourse lies at the heart of the offending, see s 49(7) and, should the parents of a complainant condone the illegal conduct, that does not assist an offender charged under s 49(3) of the CLCA.

7. Nonetheless just as the respective ages of the defendant and the complainant are relevant, so is the general nature of their relationship in the context of their families’ attitudes.  For example, in R v Dyett this Court recently explained:[45]

   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.[46]  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:[47] 

   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…

   [45]   R v Dyett [2023] SASCA 41, [43].

   [46]   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).

   [47]   Clarkson v The Queen (2011) 32 VR 361, 365 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

8. Whilst these features are not mitigatory, they are relevant.[48]  They assist in identifying the extent of the offender’s moral culpability and the relative seriousness of the offending.  They may, for example, serve to emphasise the absence of features that might otherwise be regarded as aggravating the offending. Having said that, they cannot be permitted to occlude the risk of harm nor allow the victim’s acquiescence to be treated as a form of mitigation.  Even in cases where the offender and the victim are relatively close in age there may be a significant risk of ongoing harm which must be recognised by the sentencing court.

   [48] Though, as has been seen, the question of “consent” can be relevant to the determination whether there exist “prescribed circumstances” for the purposes of sch 1, cl 1(2) of the Child Sex Offenders Registration Act 2006 (SA). See s 49(7) below.

9. Nonetheless there is a clear difference between a case of offending by a mature adult against a child of four or 13 years, particularly where it occurs in breach of a position of trust and authority, as against offending by a young adult of 18 against a child of 15 years and 11 months where there is no exploitation of a position of trust and authority. Quite apart from the maximum penalty of life imprisonment imposed by s 49(1) where the child is under 14 years, cases involving young children may involve grooming if not outright coercion and sexual violence. If there is no error associated with identifying aggravating features such as these, it is difficult to see why it is an error to identify their absence when examining the nature of any relationship in which offending occurred.

10. The terms of s 49(3) of the CLCA, and the maximum penalty, represent Parliament’s judgment about what is lawful and the seriousness with which it regards transgressions of the law. That is so regardless of the attitudes of the offender, the complainant and their families to this kind of offending.

11. That there is some scope for recognising the nuances associated with a young offender and a complainant who are close in age is reflected in the structure of s 49 of the CLCA, as well as in the recognition of what may amount to “prescribed circumstances” within the meaning of the Sentencing Act. Section 49 provides:

    49—Unlawful sexual intercourse

    (1)A person who has sexual intercourse with any person under the age of 14 years shall be guilty of an offence and liable to be imprisoned for life.

    (3)A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.

    Maximum penalty: Imprisonment for 15 years.

    (4)It shall be a defence to a charge under subsection (3) to prove that—

    (a)     the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and

    (b)     the accused—

    (i)was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or

    (ii)believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years.

    (5)A person who, being in a position of authority in relation to a person under the age of 18 years, has sexual intercourse with that person is guilty of an offence.

    Maximum penalty: Imprisonment for 10 years.

    (5a)It is a defence to a charge under subsection (5) if the accused was a person of a class described in subsection (9)(c) and proves that—

    (a)     the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of 17 years; and

    (b)     the accused—

    (i)was, on the date on which the offence is alleged to have been committed, under the age of 18 years; or

    (ii)believed on reasonable grounds that the person with whom the accused is alleged to have had sexual intercourse was of or above the age of 18 years.

    (6)A person who, knowing that another is by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse, has sexual intercourse with that other person is guilty of an offence.

    Maximum penalty: Imprisonment for 10 years.

    (7)Consent to sexual intercourse is not a defence to a charge of an offence under this section.

    (8)This section does not apply to sexual intercourse between persons who are married to each other.

    (9)For the purposes of this section, a person is in a position of authority in relation to a person under the age of 18 years (the child) if—

    (a)     the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or

    (b)     the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or

    (c)     the person provides religious, sporting, musical or other instruction to the child; or

    (d)     the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or

    (e)     the person is a health professional or social worker providing professional services to the child; or

    (f)     the person is responsible for the care of the child and the child has a cognitive impairment; or

    (g)     the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or

    (ga)   the person is employed or providing services in a licensed children's residential facility (within the meaning of the Children and Young People (Safety) Act 2017), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972, or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or

    (h)     the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

12. It is a defence to s 49(3) where the complainant is 16 years or older, s 49(4)(a), and where the accused is less than 18 years, or believed on reasonable grounds that the person with whom the accused is alleged to have had sexual intercourse was seventeen years or older, s 49(4)(b).

13. Cases involving an accused in “a position of authority” and a complainant under 18 years are addressed by ss 49(5), 49(5a) and 49(9). It is a defence to s 49(5) where the complainant is 17 years or older, s 49(5a)(a), and where the accused is less than 18 years, or believed on reasonable grounds that the person with whom the accused is alleged to have had sexual intercourse was 18 years or older, s 49(5a)(b).

14. By s 49(6) it is an offence to have sexual intercourse with a person, knowing that the person is by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse.

15. As earlier mentioned, consent is not a defence to offending under s 49, see s 49(7). Section 49 does not apply to people who are married, s 49(8).

16. Under the Sentencing Act, the sentencing options of a suspended sentence and home detention are available where the offending occurs in “prescribed circumstances”, which requires that the defendant be 20 years or younger.[49] 

    [49]   Sentencing Act, ss 71(6) and 96(10).

17. These sentencing options do not amount to the condoning of unlawful conduct.  It would be wrong to view them in that way.  They represent options available to the sentencing court when exercising a broad sentencing discretion when dealing with an offender and a complainant who are relatively close in age.  However, like a bond or a decision not to impose a conviction, sentencing options such as these cannot be adopted in a vacuum or without regard to proper sentencing considerations and sentencing standards generally.[50] These somewhat more lenient sentencing options may be appropriate where there is an absence of the aggravating features sometime seen in cases under s 49 of the CLCA.

    [50]   R v Butler (A pseudonym) [2022] SASCA 112, [70] (David JA and Mazza AJA).

18. In this case the sentencing judge considered that the respondent’s offending was “sufficiently atypical” that “emphasis should not be placed upon general deterrence”. That was an error of law, vitiating the exercise of sentencing discretion.  Unlike personal deterrence, general deterrence will ordinarily remain relevant to unlawful sexual intercourse offending, regardless whether the offender and the complainant are relatively close in age and regardless of the personal circumstances of the offender:[51]

    The purposes underlying the offence of unlawful sexual intercourse include protecting young people from predatory conduct by older people, and the adverse physiological and psychological consequences which can often follow.

    …

    …  [B]ecause an associated purpose underlying the offence of unlawful sexual intercourse is to protect young people against the consequences of their own immaturity, and not merely to deter older people from taking advantage of, or exploiting, the sexual inclinations of the young, general deterrence remains important even when there is a genuine belief that the victim is older.  This is an issue concerned with the protection of the community.

    In those circumstances, the need to protect the young, and the weight which must be given to general deterrence, may well require that a first offender for this type of offence be imprisoned.

    (Citations omitted.)

    [51]   Glade v The Queen [2020] SASCFC 83, [29], [31]-[32] (Livesey J, with whom Kelly and Bleby JJ agreed); R v Butler (A pseudonym) [2022] SASCA 112, [65]-[66] (David JA and Mazza AJA).

19. The sentencing judge described the complainant as a willing and active participant, who consented (in a “non-legal sense”) to sexual intercourse. There is no need to repeat the observations earlier made about the dangers associated with describing victims as consenting to unlawful conduct. In context, it is clear that her Honour was intending by these references to identify the absence of aggravating features, such as grooming, exploitation and coercion which may be seen in cases involving offending under s 49 of the CLCA. Whilst the absence of aggravating features cannot be conflated with the existence of mitigating features, the circumstances of the respondent’s offending, his youth and his favourable personal circumstances suggested some scope for leniency, including the imposition of a bond.[52]

    [52]   Arnold v Samuels (1972) 3 SASR 585, 596 (Bray CJ); “it cannot be that all the considerations which have induced the laws make special efforts to reclaim youthful offenders to disappear magically as the clock strikes twelve at midnight on the day before the offender’s eighteenth birthday”.

20. Nonetheless, the power to refrain from recording a conviction is an exception to the ordinary rule,[53] and must be exercised sparingly.[54] The circumstances of the offending and the offender did not in this case warrant the favourable exercise of discretion to refrain from recording a conviction. There was no suggestion that the respondent’s employment was likely to be jeopardised.  A conviction should have been recorded.  It follows that, for this reason as well, the exercise of sentencing discretion miscarried.

    [53]   Goldsworthy v Police [2016] SASC 85, [27] (Stanley J), citing Sims v Police (2000) 30 MVR 524, [7] (Bleby J).

    [54]   Daley v The King [2023] SASCA 29, [36]-[42].

21. Finally, it has been seen that the prosecution twice submitted to the sentencing judge that “all sentencing dispositions were open”.  However, this is not a case where it can be fairly said that there is a marked difference between the approach taken by the prosecution before the sentencing judge and the approach urged on the appeal against sentence.[55] Neither her Honour nor counsel for the respondent addressed whether this was a proper case in which no conviction should be recorded. The sentencing judge asked only whether it was outside the sentencing court’s discretion to utilise s 97 and impose a bond. Only that sentencing option was addressed by the prosecution. That option is not the focus of the present application.

    [55]   Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ); R v Beaumont [2023] SASCA 128.

    Conclusion

22. Whilst material error has been established, more must be shown to justify this Court’s principled intervention on a prosecution appeal against sentence. 

23. The failure to record a conviction in this case has not produced a sentence which is so low and disproportionate to the seriousness of the offending and the circumstances of this young offender that it undermines public confidence in the administration of justice.[56] 

    [56]   Everett v The Queen (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ); Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ); R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ).

24. The application for permission to appeal sentence should be dismissed.