R v HARSE

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HARSE
[2017] SASCFC 17
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
10 March 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - ROLE OF GUILTY PLEA OR DEPOSITIONS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - OTHER MATTERS
Appeal against sentence.
The appellant sexually abused his adopted son over many years. The circumstances of the offending resulted in a charge of persistent sexual exploitation of a child contrary to s 50(1) Criminal Law Consolidation Act 1935 (SA). The appellant's first appearance in the Magistrate’s Court was on 3 August 2015. The Magistrate adjourned the matter for 10 weeks. The appellant pleaded guilty on the adjourned date of 14 October 2015.
After amendment for an arithmetical error, the appellant was sentenced to eight years and four weeks and 17 days imprisonment, after a thirty per cent reduction for the appellant’s guilty plea. A non-parole period of five years was fixed.
The appellant appeals on the grounds that the Judge ought to have allowed a greater discount on sentence and that the head sentence and non-parole period were excessive.
The appellant contends that he was unable to enter a guilty plea within the four-week post-charge period which would have entitled him to a forty per cent discount. This was said to be because the matter was not listed in that period. The defendant’s solicitor was not instructed until 8 October 2015. At that time the appellant received advice on sentencing reductions for an early guilty plea for the first time.
Held per Curiam (Kourakis CJ, Blue and Lovell JJ), allowing the appeal:
1. The enlivening factor under s 10C(3)(b)(iii) Criminal Law (Sentencing) Act 1988 was satisfied. The reason for the plea not being entered in the statutory period was not the appellant’s failure to request a shorter adjournment.
2.       The appellant was not offered the opportunity of an earlier listing. At the time of his first appearance in the Magistrate Court, the appellant was unrepresented and ignorant of his right to ask for an earlier listing which may have secured a greater reduction in sentence for his guilty plea. Had he known, the appellant would have sought to plead guilty earlier.
3.       Sentence imposed in the District Court set aside.
4.       A starting sentence of imprisonment for twelve years is appropriate.
5.       New sentence of seven years and two months and seven days imprisonment imposed with a non-parole period of four years four months both taken to have commenced on 26 April 2016.
Criminal Law (Consolidation) Act 1935 (SA) s 50(1); Criminal Law (Sentencing) Act 1988 (SA) ss 10C, 10C(2)(d), 10C(3)(b)(iii), referred to.

R v HARSE
[2017] SASCFC 17
Court of Criminal Appeal: Kourakis CJ, Blue and Lovell JJ

THE COURT: This is an appeal against a sentence imposed in the District Court. On 14 October 2015, the appellant pleaded guilty in the Magistrates Court to persistent sexual exploitation of his adopted son, the victim (V), contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and was committed to the District Court for sentence. The maximum penalty for that offence is life imprisonment. The appellant first appeared in the Magistrates Court on that charge on 3 August 2015 and was remanded on bail to 14 October 2015, more than four weeks after his first appearance.
On 26 April 2016 after hearing sentencing submissions the Judge revoked the appellant’s bail. On 2 June 2016, the appellant was sentenced to imprisonment for eight years, five months and three weeks with a non-parole period of five years. The Judge commenced with a notional sentence of imprisonment for 12 years which his Honour intended to reduce by 30 per cent on account of the appellant entering a guilty plea before his committal, and by a further period of six days which the appellant had spent in custody in the course of his extradition from Queensland. On 20 June 2016, as a result of some confusion over the arithmetic, the head sentence of imprisonment was reduced to eight years, four months and 17 days which commenced on 2 June 2016 according to the record of proceedings, despite the Judge stating in his sentencing remarks that he intended to backdate the sentence. The Judge retained the non-parole period of five years.
The appellant appeals against the sentence imposed by the Judge on two grounds:
1the Judge erred in failing to allow a greater discount on sentence having regard to all of the circumstances; and
2the head sentence and non-parole period were excessive in all of the circumstances.
The appellant’s complaint on the first ground is that by reason of his remand to 14 October 2015 he was unable to enter a plea of guilty within the four week post-charge period in which he would have been entitled to up to a 40 per cent reduction. On the second ground the appellant emphasises his age and previous good character. Permission to appeal was given by a single Judge of this Court on the first ground and the second ground was referred to this Court.
As to the first ground, on the proper construction of s 10C(3)(b)(iii) of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) the discretion to allow a greater reduction, as if a defendant had pleaded guilty at an earlier time, is enlivened when the only reason the guilty plea was not entered within the prescribed period is that the matter was not listed within that period. That enlivening criterion involves determination of a question of fact requiring an evaluation of responsibility for the plea not being entered earlier.
In the exceptional circumstances of this case, the fact that the appellant did not ask that his matter be listed earlier was not a reason within the meaning of that term in s 10C(3)(b)(iii) for the appellant’s plea not being entered within the prescribed period and did not prevent satisfaction of the prerequisite in that subparagraph. It was not such a reason because in listing the matter the presiding Magistrate did not offer to the appellant the opportunity of an earlier listing, and, as an unrepresented defendant, he was ignorant of his right to ask for one, and was unaware that an earlier listing might secure him a greater reduction for his plea of guilty.
The appeal should be allowed and the appellant resentenced. The protracted and extensive sexual abuse and subjugation of V, and the need for general deterrence in cases of this kind, called for a notional starting sentence in the order of that selected by the Judge. Having regard to our conclusion on the first ground, there is no utility in determining the second ground. Having regard to the time spent in custody on extradition, a head sentence of imprisonment for seven years two months and 7 days from 26 April 2016 should be imposed and a non-parole period of four years and four months fixed. It has become apparent in revisiting the material in relation to sentence that the Judge intended, when fixing the arithmetical error on 20 June 2016, the sentence to commence on 26 April 2016 and not 2 June 2016. We correct that slip by directing that the sentence commence on 26 April 2016.
The offending
V was born on 6 October 1963. In about 1973, the appellant began a relationship with V’s mother. In 1975, the appellant married V’s mother and adopted her two sons, V and his brother. The appellant and his wife remain married and have had another two children. At the time of the offending the appellant was the owner or manager of butcher shops.
V described the appellant in his witness statement as a harsh stepfather whom he feared. The appellant brutally beat V many times during his childhood.
The first such a beating that V could recall occurred in 1975; V was aged 12 at the time, and spent a day at the races, either at Morphettville or Cheltenham, with a friend without first seeking permission. When V returned the appellant angrily reprimanded him for not telling his mother where he had been. The appellant then whipped V many times with a belt. The whipping left bruises, swelling, raised welts and broken skin. V also witnessed the appellant beat his brother. On an occasion in 1976 when camping in Stawell, where the appellant competed in the Stawell Gift, V was flung through a caravan door because he was chatting noisily with his brother late into the night.
The appellant also exerted a strict discipline on V in the routine of daily life.
The appellant’s sexual grooming of V commenced with a conversation hinting at sexual matters in mid-1977. In that same year, and before V’s 14^th birthday, the appellant took V to his butcher shop on a Sunday when it was closed. He caused V to engage in mutual masturbation and performed oral sex on him. V was so sickened by the conduct that he vomited in a drain at the rear of the premises. The appellant told V to keep what had happened secret. After that first incident the sexual abuse of V continued frequently.
Later in 1977 the appellant first made V commit sexual acts on him beyond masturbation. Following this incident, the appellant committed sexual offences against V on an average of once per week until V turned 17 years old. In some weeks V was not abused at all, but on others he was abused on many occasions. Generally, these sexual acts involved the appellant fellating V, masturbating V’s penis and causing V to commit the same acts on the appellant. The appellant also rubbed his penis between V’s buttocks and ‘on occasion’ the appellant attempted to penetrate V’s anus with his penis. The sexual acts were committed at various locations including the appellant’s home, his butcher shop, various hotels and motels in which the appellant and V stayed on trips, and in his motor vehicle.
The appellant also attempted to have V play a part in his sexual fantasies which involved his mother.
On one night, V returned home at 11:00pm after attending a party. The appellant confronted him soon after he entered the house and abused him for coming home late. The appellant then punched him with a closed right fist to his mouth breaking a tooth and causing bleeding. V left home for about six weeks before he was persuaded to return home. V told the appellant that he did not want the sexual relationship to continue but after two or three weeks the sexual abuse resumed.
On another occasion in October 1979 when V was 16, he and the appellant attended a function at which the appellant became drunk. For some reason unknown to V, the appellant became angry at him. After leaving the function when the appellant and V were alone in the car the appellant abused V for being lazy and incompetent. He then assaulted V, using his hands and one leg to kick and punch him. The abuse continued during the ride home. V reported the incident at the Darlington Police Station and as a result was placed in crisis care for the night.
The appellant’s sexual relationship with V continued until V left home to live interstate at about 20 years of age. The Judge correctly observed that the continuation of the relationship between V and the appellant into the former’s adulthood demonstrated the appellant’s domination over him.
In about May or June 1982, V formed a relationship with a young woman and found the confidence to move out of home. According to V the appellant became ‘incredibly jealous’ that he had a girlfriend and told V to pack his belongings and go. V then moved into a boarding house. When he returned home to collect some belongings there was a confrontation in which the appellant violently assaulted V. V told the appellant in his mother’s presence that he would make a complaint about the appellant’s sexual offending. The next morning he received a phone call from his mother who, in effect, accused him of having an affair with the appellant.
The impact of the offending
As a result of the appellant’s gross sexual misconduct, V suffered greatly. Among other things, V suffered depression and anxiety, became reliant on drugs and alcohol, struggled to build relationships, suffered regular night terrors and flashbacks, and could not find regular employment. V clearly suffered very significant emotional and psychological trauma.
Set out below are extracts from the victim impact statement provided by V:
This all changed however, once the accused started the years of sexual, physical and emotional abuse that would replace my childhood hopes with a never ending nightmare that has impacted my life every day since. My faith, my dignity, my dreams, innocence and hope, were brutally taken away from me, and replaced with hatred, shame, guilt, anxiety, depression and near constant thoughts of suicide.
I have battled and fought depression and anxiety since my teens, resulting in many occasions where I could not even leave the house for days at a time. For many years I struggled to hold down a job, moving and drifting aimlessly across the country, vainly looking and hoping for somewhere where I would feel safe and normal.
The debilitating depression and anxiety were further exacerbated by a tremendously deep self-loathing and shame that no amount of drugs or alcohol could numb, no matter how much I drank, smoked, snorted or injected. All I wanted was some peace, something to just stop the constant newsreel that continually played in my head, further enhancing my feelings of worthlessness, despair, guilt and shame. A large part of this was simply wanting to punish my body, as I felt it had betrayed me.
…
The high frequency of the abuse has meant that there is basically nothing in my day to day life that does not trigger a painful memory or flashback. This has led to the constant newsreel I mentioned earlier, something I have fought hard to deal with, and exist in the world with. The impact of these triggers cannot be underestimated, and I often wonder how much better life would have been without these constant reminders. What makes me truly sad is I will never know.
…
My attempts at finding peace or solitude by drug and alcohol abuse led to some significant health issues later in life, to the point where I have had five heart attacks. These attacks were part of the catalyst for some major changes in my life, including seeking psychiatric help, and fulfilling a dream of attending University …
The appellant’s antecedents
The appellant is 67 years old. He has no prior convictions.
The appellant was born in Broken Hill where he remained until the age of 13 when his family relocated to Adelaide. He left school at 13 and since then has nearly always been in continuous employment. He has a strong work ethic and excellent employment history. At the age of 17 he commenced a four year long butcher’s apprenticeship. He worked as a butcher for the next 27 years, eventually owning his own businesses. For about 14 years before his arrest he worked as a property manager of high rise buildings and was on call seven days a week. However his property management business struggled since the global economic crisis.
The psychologist, Mr Richard Balfour, interviewed the appellant on 16 March 2016. Mr Balfour reported that the appellant was sexually abused when he was 13 by a 19 year old man. Prior to speaking with Mr Balfour, the appellant had never disclosed that abuse. Mr Balfour opined that the appellant’s ‘early childhood experience has directly resulted in [the appellant’s] offending against V’. The offending was said to be a projection of the appellant’s sexual confusion and ambivalence. As a result, Mr Balfour found that the appellant satisfied the diagnostic criteria for paedophilia. In Mr Balfour’s opinion that condition appeared to be in remission because the last known sexual offending was in 1983. Mr Balfour noted that the appellant was not in denial about his sexual offending and that he had cooperated with the police and made frank admissions. He exhibited both victim empathy and remorse and had not tried to minimise the severity of his offending behaviour.
The Judge accepted Mr Balfour’s opinion that the appellant is ‘motivated to participate in rehabilitation’ and that there were good prospects of the appellant not re-offending.
Although in reasonable health the appellant has become prone to depression and anxiety due to the financial stress of his business. He had been prescribed an antidepressant in the 12 months prior to visiting Mr Balfour. The Judge found that the appellant’s depression had been exacerbated by the criminal proceedings.
The Judge noted that the appellant had fully cooperated with police about the offending and that he had made ‘frank admissions’. The Judge also found that on an occasion in 2000 the appellant briefly apologised to V. Another apology to V was also read out in court. The Judge accepted that the appellant deeply regretted the offending as well as the resulting misery suffered by V.
The Judge made the following remarks on the reduction his Honour proposed to make for the appellant’s early guilty plea:
I referred to the fact you deserve substantial credit for your early guilty plea in the Magistrates Court. You did not enter your plea within the automatic period that would automatically entitle you to a discount of up to 40% under the provisions of the Sentencing Act. I accept the contents of your affidavit wherein you depose that you would have entered your plea much sooner than you did and within the relevant period but for the factors discussed in your affidavit. There is no need to descend into a discussion about those factors. I do not believe that those factors bring you within s.10C(3)(b)(iii) of the Sentencing Act that would enable you to be sentenced as if you pleaded guilty within the relevant period.
Accordingly, I accept the prosecution submission that you are only entitled to a discount of up to 30%. I think that is unfortunate because I have no doubt that you did intend to plead guilty earlier.
The Judge observed that the appellant had committed ‘a grave offence’. The Judge remarked that the appellant abused his position of trust for his ‘own tawdry sexual gratification’ causing great suffering to V.
The timing of the guilty plea
V reported the sexual offending to the police in 2015. On 16 June 2015, a warrant was issued for the appellant’s arrest. On 29 July 2015, the appellant was arrested interstate where he then lived with his wife. When interviewed on arrest he made full and frank admissions.
He was extradited to South Australia and remained in custody until he appeared in the Adelaide Magistrates Court on 3 August 2015. The appellant had been in custody from the time of his arrest until that appearance. At that first hearing the appellant was granted bail to reside at his home interstate and remanded to appear on 14 October 2015, a period of approximately 10 weeks.
On the hearing of the appeal, the Court expressed its concern about the paucity of material as to what transpired in the Magistrates Court on the appellant’s first appearance. The Court made orders permitting the parties to file further material in relation to the appellant’s first appearance in the Magistrates Court and the intervening period until the entry of the appellant’s guilty plea on 14 October 2015.
In accordance with those orders, the appellant filed:
·an affidavit of the appellant sworn on 19 October 2016;
·an affidavit of the appellant’s wife sworn on 19 October 2016; and
·transcript of the proceedings in the Adelaide Magistrates Court on 3 August 2015.

The subsequently filed material reveals that the appellant received no legal advice with respect to the charge before he first appeared in the Magistrates Court in South Australia. Nor was a duty solicitor available to see him at court on that occasion.
On his appearance, the Magistrate informed the appellant as follows:
… In each of these cases, which is called ‘major indictable’, to enable the police and Director of Public Prosecution, they need to have everything committed to writing, they need signed statements. That’s not protocol that happens in summary courts and so, in each and every matter, our protocol is that they have 10 weeks in which to complete their case, give it to you or your lawyer and for you to be in a position to be able to answer the charge and it will be committed to writing. So they will have until the 14 October …
During the course of the hearing, the appellant enquired:
DEFENDANT: Will I get those documentation of everything that I’m supposed to do, when I’m supposed to go and that?
HER HONOUR: That will all be on your bail agreement and the bail agreement will tell you. So it’s not until that date which was the 14 October is the first time you or your lawyer, your lawyer needs to contact the Director of Public Prosecution and give an address or something, or the Legal Aid, as to where all the statements should be sent because they can just electronically send them there …
At no stage during the first hearing was the topic of sentence reductions for a guilty plea raised.
The appellant applied for legal assistance from the Legal Services Commission of South Australia from interstate on 21 August 2015. A note on the form which the appellant signed and submitted read:
Please note that legislation changes may result in a reduction in your sentence if you plead guilty early to these charges. The maximum potential reduction will generally only be available for a plea of guilty entered within 4 weeks of your first court appearance. Ask your solicitor as soon as possible to advise if you are entitled to a discount.
There were some delays in processing the appellant’s application. When he eventually instructed a solicitor on 8 October 2015, he was provided with advice on sentencing reductions for an early guilty plea. It is accepted that that was the first time that the appellant received such advice.
The legislation
The first ground of appeal is that the sentencing Judge erred in failing to impose a greater discount on sentence having regard to all of the circumstances.
Section 10C of the CLSA relevantly provides:
10C—Reduction of sentences for guilty plea in other cases
…
(2)If a defendant has pleaded guilty to an offence or offences—
(a)     not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)     more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
…
(d)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
…
(3)If—
(a)     a maximum reduction available under subsection (2) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and
(b)     the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—
(i)the court did not sit during that period; or
(ii)the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or
(iii)the court did not list the defendant's matter for hearing during that period; or
(iv)the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period,
the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.
…
(6)For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.
We observe first that s 10C(2)(d) confers a specific power to reduce a sentence by up to 30 per cent when a defendant has failed to plead before committal but before the commencement of his or her trial in the District Court ‘if the defendant satisfies a sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control’. It is not immediately obvious why that specific dispensation was included in s 10C having regard to the differently expressed universal exemptions enacted by s 10C(3) of the CLSA. However, it may be significant that s 10C(2)(d) addresses the period between the committal in the Magistrates Court, on which occasion a date for arraignment is set, by reference to the Rules of the District and Supreme Court, and the trial of the matter in the higher Court. It may be that the mischief to which the provision is directed is the committal from regional Magistrates Courts to the regional circuits of the District and Supreme Courts. Be that as it may, of present importance to the construction of s 10C(3) of the CLSA is that the enlivening condition of the discretion conferred by s 10C(2)(d) is that the defendant satisfy the Court that he or she could not reasonably have pleaded guilty earlier ‘because of circumstances outside of his or her control’.
Similarly, on the construction of s 10C(3) of the CLSA, the enlivening condition found in subparagraph (iv) is important. It allows the reduction of the sentence up to a proportion authorised by the statute if a guilty plea had been entered in an earlier period if ‘the court was for any other reason outside of the control of the defendant, unable to hear the defendant’s matter during that period’. The necessary implication of the words ‘for any other reason outside of the control of the defendant’ is that the preceding subparagraphs also address circumstances which are outside of the control of the defendant.
Secondly, the proper construction of s 10C(3) of the CLSA must be informed by the context in which it was intended to operate. Parliament must be taken to have enacted s 10C(3) of the CLSA with an understanding of the listing practices of the court. The courts adjourn matters before them from time to time for a range of reasons in ways calculated to achieve efficient and effective case management. The adjournment given on the appellant’s first appearance was as long as it was for that very reason. The adjourned dates will not always fit neatly within the periods of time prescribed by s 10C of the CLSA. Importantly, courts may not always be informed of a defendant’s intention to plead guilty or not guilty and it is often not desirable that the Court make those enquiries if the defendant is unrepresented. If a defendant is represented, then the courts are entitled to rely on the competence of the defendant’s legal representative to seek an adjournment within a time which is consistent with his or her instructions as to the likely plea. Moreover, Parliament must also be attributed with knowledge of the flexible listing practices adopted by Courts by which an administrative adjournment may be granted or a matter listed earlier if there is good reason to do so.
Finally, we observe that subparagraph (i) of s 10C(3)(b) of the CLSA confers a discretion to reduce a sentence by a greater amount when a court does not sit at all during the entire period within which a guilty plea would have attracted a higher reduction. If a court does not sit at all — and that would be an unusual occurrence — there is little a defendant who wishes to plead guilty can do. We observe here however that this subparagraph may manifest a confusion between the sittings of a court and the particular courthouses in which the court may sit. The regional courthouses of the Magistrates Courts, and the circuits of the higher courts, are all sittings of the single respective court.
The question as to the proper construction of s 10(c)(3)(b)(iii) of the CLSA has two alternative answers. First, the subparagraph might be read literally so that it applies whenever the Court does not list the matter during the relevant four week period, for example when the Court adjourns the matter outside the prescribed period. Second, the subparagraph might apply only when a court refuses or fails to list the matter within the relevant period despite the defendant’s request, such as if the Court so adjourns the matter against the defendant’s request to list it within the prescribed period. On the first construction a factual question will often arise as to whether the listing of a matter outside the prescribed period, when a defendant has not sought an adjournment to a time within that period, is the ‘only reason’ a guilty plea was not entered, given the flexible and responsive listing practices of courts.
The context and purpose of s 10C might be considered to support a construction that s 10C(3)(b)(iii) of the CLSA is limited to those occasions when a court refuses or fails to list a matter within a prescribed period despite a defendant’s request that it do so. However, we are not persuaded that that is the correct construction. It requires a substantial reading down of the plain words of the section against the interests of defendants. A proper exercise of the discretion would almost always require a court to list a matter on a date to enable a defendant to take advantage of a sentence reduction for a foreshadowed plea of guilty. It is difficult to contemplate any circumstance in which a court would refuse to do so other than in those circumstances covered by s 10C(3)(b)(i) and (ii) and, that being so, s 10C(3)(b)(iii) of the CLSA would have no or very little work to do if read down in that way.
Moreover, in most cases in which a defendant seeks or acquiesces in an adjournment to a date outside of the prescribed period, the factual question to which we adverted will usually be decided adversely to the defendant. A defendant who seeks or acquiesces in a longer adjournment for reasons convenient to him or her or his or her legal representative (like, for example, wanting more time to consider whether to plead guilty or not) will generally not be able to establish that the court’s listing of the matter was ‘the only reason that the defendant did not plead guilty within the relevant period’. Similarly, in the generality of cases in which a legal practitioner fails to advise a defendant of the available reductions, or fails to arrange an adjournment within the relevant period if so instructed, the late listing will not be the only reason an early plea was not entered. The legal practitioner’s failure will also be a reason, indeed the main reason, why the guilty plea was not entered earlier.
Nonetheless, there will be some relatively rare cases in which the listing of a matter outside the prescribed period is the only reason the defendant does not plead guilty within that period despite the defendant’s not having requested an adjournment to a date within that period. It would be unjust to construe s 10C(3)(b)(iii) of the CLSA in a way that would deny a defendant in those circumstances the opportunity of a favourable exercise of the discretion.
Whether or not a defendant’s failure to request an adjournment to a date within the prescribed period is a reason for the failure to plead early requires an evaluative exercise in identifying the reason or reasons for the defendant not entering a guilty plea earlier. The function of identifying legally significant reasons, or responsibility, in law, for consequences is a familiar task for courts. Not all prodromal conduct or events are a cause of, or incur responsibility, for a consequence.
The terms of s 10C(3) of the CLSA suggest that the onus on a defendant to plead early in order to benefit from the sentencing reduction regime of s 10C of the CLSA is moderated by what is reasonably practicable. That criterion, objectively applied, may in some cases distinguish between conduct or events which are merely precursors to, and those which are reasons for, the late entry of a guilty plea.
In the exceptional circumstances of this case we have concluded that the defendant’s not having requested a shorter adjournment was not a reason for his guilty plea being entered outside the prescribed period.
Those exceptional circumstances are, first, that the Judge accepted that the appellant did not have any strategic reason for acquiescing in the longer adjournment. The Judge accepted that he would have pleaded earlier if he had been advised of the reduction regime. This is strongly corroborated by the defendant’s fulsome admission to the police when interviewed on 29 July 2015 before his first appearance in the Magistrates Court on 3 August 2015.
Secondly, it is difficult to assign the appellant’s not having requested an earlier adjournment as a reason for not entering his guilty plea within the prescribed period when he did not know he could ask for a shorter adjournment and was unaware of the reduction regime. Indeed it is difficult to characterise his not requesting an earlier adjournment as a failure at all.
Thirdly, the explanation of the Magistrate for adjourning the hearing for 10 weeks was calculated to leave the impression that there was little, or no, room to depart from the ‘protocol’ of a 10 week adjournment. The appellant was not given an opportunity to comment on the length of the adjournment or to request an earlier adjournment. It is clear from his response to the Magistrate that he understood that the protocol was that he would be provided with the procedural information he needed during the 10 week adjournment.
Fourthly, it is difficult to ascribe the appellant’s not foreshadowing a plea of guilty as a reason for not entering a plea within the prescribed period when he was not asked about his plea and was ignorant of the process.
Fifthly, even though the appellant was alerted to the sentence reduction regime in the legal aid form, it is plain that the appellant did not understand that he could do anything to bring the hearing forward.
Conclusion
The enlivening factor prescribed by s 10C(3)(b)(iii) of the CLSA was satisfied in this case. There has therefore been an error of law in the sentencing process. We set aside the sentence imposed in the District Court. We maintain the starting point of 12 years selected by the Judge. The objective seriousness of the appellant’s offending is grave. His otherwise good character can be given only limited weight in the face of the protracted long term abuse over many years. Applying a 40 per cent reduction results in a term of seven years, two months, and 13 days.
Allowing for the time in custody on extradition, we impose a head sentence of seven years and two months and 7 days from 26 April 2016. The sentence is to commence on that date for the reasons discussed in the introduction.
The appellant’s work history, lack of other offending, age and his life since the last of his offending against V suggest that he has good prospects of rehabilitation. However, the needs of general deterrence and punishment do not allow for a non-parole period of less than four years and four months to be fixed for sexual exploitation as grave, frequent, long-lasting and devastating as this.
The non-parole period is approximately 60 per cent of the head sentence which is close to the proportion fixed by the Judge.
Orders
We would make the following orders:
1 The appeal is allowed.
2 The sentence imposed in the District Court is set aside.
3The appellant is resentenced to imprisonment for seven years and two months and 7 days with a non-parole period of four years and four months commencing on 26 April 2016.

[2017] SASCFC 17

10 March 2017

Key Legal Topics

Areas of Law

Criminal Law

Statutory Interpretation

Legal Concepts

Appeal

Sentencing

Charge