R v Jackson - [2014] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JACKSON
[2014] SASCFC 101
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Stanley)
24 September 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - CONSENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Application by Director of Public Prosecutions for permission to appeal against suspension of sentence.
The respondent pleaded guilty to one count of unlawful sexual intercourse with AC at a time when the respondent was aged 30 and AC was three days short of 17. The respondent was a serving police officer and in the period leading up to the offence had been taking a long statement from AC in relation to sexual offences by a man of a similar age to himself. AC commenced sending to the respondent text messages of a sexual nature and indicating that she wanted to have sexual intercourse with him. He responded in kind and they later met for that purpose. The respondent admitted the offending at the earliest opportunity and resigned his position. He was sentenced to one year and five months imprisonment with a non-parole period of nine months, suspended upon entry into a bond of $5000 to be of good behaviour for three years. The Director of Public Prosecutions applied for permission to appeal against the suspension.
Held per Peek J (refusing permission to appeal):
1.       The Judge correctly appreciated the significance of the respondent being a police officer who offended as a police officer and not in a private capacity; he specifically referred to those matters in his sentencing remarks. [13]
2.       The Judge did not proceed on an incorrect basis that the offending was mitigated by virtue of the sexual experience of AC and the desire expressed by AC to have sexual intercourse with the respondent. [20]-[23]
3.       The proposition that no reasonable Judge could have suspended a prison sentence in all of the above circumstances was not capable of being established in all of the circumstances. [25]
4. The principles of double jeopardy that arise in relation to appeals against suspended sentences by the Director of Public Prosecutions strongly militate in favour of refusing permission to appeal in the circumstances of this case: R v Kong [2013] SASCFC 15 applied. [26]-[28]
Criminal Law Consolidation Act 1935 s 49(3), referred to.
The Queen v B, J [2007] SASC 67; R v Kong [2013] SASCFC 15, applied.
R v Halse (1997) 70 SASR 456; R v McPartland and Polkinghorne [2014] SASCFC 84, discussed.
R v Harkin [2013] SASCFC 15; R v Marien (2011) 109 SASR 334; R v Hicks (1987) 45 SASR 270; Green & Quinn v The Queen (2011) 244 CLR 462; The Queen v MH [2007] SASC 41, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"sexual intercourse", "police officer", "sexual experience"

R v JACKSON
[2014] SASCFC 101
Court of Criminal Appeal: Peek, Blue and Stanley JJ

PEEK J. Application by Director of Public Prosecutions for permission to appeal against suspension of sentence.
Introduction
The respondent pleaded guilty to one count of unlawful sexual intercourse with the complainant on 21 February 2013 contrary to s 49(3), Criminal Law Consolidation Act 1935 (the Act). The maximum penalty for that offence is imprisonment for 10 years.
In brief form, the essential facts were as follows. The respondent was born on 16 June 1982 and as at the date of offending he was 30 years old. The complainant, AC, was born on 24 February 1996 and as at the date of offending she was three days short of her 17^th birthday.
As at the time leading up to the offence, the respondent was a police officer stationed at Holden Hill police station. On the evening of 5 February 2013, he and other police officers were called to the house where AC was residing with an adult male, SH (then aged 30). AC made allegations that SH had raped her and physically assaulted her. The respondent was allocated the role of “victim management” and that night he conveyed AC to Yarrow Place.
In the days following, the respondent commenced taking a detailed statement from AC which involved several meetings with her at the Holden Hill police station. It was apparent to the respondent from that statement that AC was alleging abuse by SH, not just on the evening of 5 February 2013 but commencing from 18 August 2012 and involving demeaning and humiliating conduct and the use of drugs and alcohol to make her amenable to sex.
At some stage, the respondent and AC commenced communicating via text message. Although innocent enough at first, by no later than 18 February 2013 the messages were sexual in nature. The first known/retrieved message of a sexual nature was sent by AC to the respondent but regrettably he responded in kind. In subsequent messages, AC made it very plain that she was eager to have sexual intercourse with the respondent and, again regrettably, he responded enthusiastically and eventually arranged to pick her up and take her to his house for that purpose.
The course of the proceedings against the respondent
The respondent made full admissions when approached by investigating police and pleaded guilty at the earliest opportunity. He resigned from the police force, thus both manifesting contrition and suffering the loss of a promising career, a heavy punishment in and of itself.
The sentence imposed
On sentencing, the Judge adopted a starting point of two years imprisonment and reduced that to a head sentence of one year and five months in light of the plea of guilty. His Honour fixed a non-parole period of nine months. His Honour then suspended the sentence upon the respondent entering into a bond to be of good behaviour for three years in the sum of $5,000 with conditions including supervision, the performance of 120 hours of community service, and psychological or psychiatric counselling as directed.
The Crown application for permission to appeal
The ground of appeal advanced at the hearing of the application for permission to appeal was restricted to the matter of suspension of sentence. The case as presented by the Solicitor-General was that the offending was so grave that it necessarily had two consequences. The first was that no Judge could reasonably have suspended a prison sentence in all of the circumstances. The second was that, in the context of the bearing of double jeopardy principles upon an application for permission to appeal, the gravity of the offending outweighed the public interest in the respondent’s liberty not being twice placed in jeopardy.
The Solicitor-General did not suggest that the Judge failed to take into account a relevant factor or took into account an irrelevant factor. Rather, he submitted that the decision to suspend the sentence was completely unreasonable and the result of undisclosed error. He submitted that such error likely occurred in one or both of two areas. The first area was that the Judge failed to appreciate the true significance of the respondent being a police officer who offended as a police officer and not in a private capacity. The second area was that the Judge (wrongly) considered the offending here to be less serious by dint of the sexual experience of the complainant. I turn to those two asserted areas of error.
The proposition that the Judge failed to appreciate the true significance of the respondent being a police officer who offended as a police officer
First, the Solicitor-General submitted that the Judge may have erred as a result of failing to appreciate the true significance of the respondent being a police officer who offended as a police officer rather than in a private capacity.
However, his Honour’s sentencing remarks disclose that he was very much alive to that matter. His Honour said:
You knew her age, you knew that she was sexually active and you knew that she had been involved in sexual relations with an older man or men. You admit that knowing all of those factors it was your responsibility to discourage her and to ensure that no sexual contact took place. I accept that [AC] was a willing participant in the sexual activity between you but as you well knew persons under the age of 17 years cannot consent to sexual intercourse. …
I have received a victim impact statement from [AC] in which [AC] said that she lives in constant fear of people who are meant to protect her. She has a profound distrust of police officers. She said she suffers from trust issues, panic attacks, sleep deprivation and has gained weight due to stress. She says that she is embarrassed. She attributes her emotional difficulties to your actions. I bear in mind the activities that she says that she was subjected to in the allegations made against her former boyfriend, and consider that such activities may well have also had an impact on her emotional wellbeing. …
I have had regard to your letter of apology. You have expressed a sincere apology to the complainant for the devastation you have caused to her life. You have accepted responsibility for your actions indicated amongst other things by your very early plea of guilty and are ashamed and humiliated. You accept, inevitably and properly, that you were in a position which required you to uphold the law and protect victims of crime. You are ashamed that you did not protect the complainant. I accept that you are remorseful and contrite. …
As a police officer you were in a position of great responsibility. That breach of trust amounts to a circumstance of aggravation. Principles of general deterrence assume great importance in circumstances such as these. A paramount policy of the criminal law is to protect children and adolescents from sexual exploitation and their own immature sexual inclinations. …
As your counsel submitted, ‘your decision to engage in sexual intercourse with the victim was unlawful and morally and professionally reprehensible. Your plea of guilty and resignation from the police force is an acknowledgment of your legal moral and professional culpability.’ …
The seriousness of the offending aggravated by the circumstances to which I have referred militates against suspension. (Emphasis added)
It is clear that his Honour did carefully and specifically address the fact of the respondent offending as a police officer and recognised that this matter had significant weight in militating against leniency in this case. His Honour’s remarks reflect a correct appreciation that he was required to take into account all relevant factors (amongst which this was an important factor), in order to come to a decision as to the appropriate sentence through the required synthesis process.
The proposition that the Judge considered the offending here was less serious by virtue of the sexual maturity of the complainant
Second, the Solicitor-General submitted that the Judge may have erred as a result of wrongly considering the offending here to be less serious by virtue of the sexual experience of the complainant.
There is no doubt that the nature of the text messages between the complainant and the respondent indicated that the complainant was very sexually experienced and wanted to have sex with the respondent. In its outline of argument, the Crown specifically accepted that “The nature of the text messages between the complainant and the respondent indicated the complainant wanted to have sex with the respondent.”
Counsel for the respondent submitted before the Judge that AC’s level of sexual experience and willingness to engage in sexual activity were matters relevant to sentencing and referred the Judge to The Queen v B, J where Gray J (Perry J agreeing) stated: [1]
[16]Counsel for the appellant contended that, on the appellant’s evidence, the complainant was not only a willing participant but was “pro-active in her pursuit of sexual activity”. Counsel further pointed out that, according to the appellant, the complainant led him to believe that she was sexually experienced.
[17]Although the sentencing Judge proceeded on the basis that the complainant was a consenting party, it is unclear whether he accepted the submission that she was proactive and sexually experienced. This was an important matter on which the Judge should have indicated the basis on which he would sentence.
[1] [2007] SASC 67, [16]-[17].
Gray J later stated: [2]
[21]Counsel for the respondent submitted that, in the context of the present proceedings, the purpose of the law is to protect adolescent females from their immature sexual curiosity and to protect them from sexual exploitation or corruption by older sexually experienced men. Counsel drew attention to the disparity in ages: – the appellant was 27 years old and the complainant was 15 years old. This is a relevant sentencing factor. However, it does not of itself preclude the exercise of the discretion to suspend a sentence.
[22]Counsel for the respondent made reference to the case of Halse,[3] where an immediate custodial term was imposed. This is a notoriously difficult offence in which to compare sentences imposed on different offenders. The circumstances vary significantly. Age can be misleading as a measure of maturity. The decision in Halse does not assist in the present case – the accused was aged 37 years and had relevant criminal antecedents,[4] including offences of attempted rape and gross indecency.
[2] [2007] SASC 67, [21] and [22].
[3] R v Halse (1997) 70 SASR 456.
[4] R v Halse (1997) 70 SASR 456, 457.
In my view, Gray J was here simply stating that such matters are relevant to sentence. This does not mean that they in any way excuse the commission of the offence. But advertence to such matters can assist in indicating where in the spectrum of offending against s 49(3) of the Act (from the least serious to the most serious) a particular case lies. To take a purely hypothetical case, it is relevant to the sentencing process to know whether the case is one where the male has pursued a sophisticated course of seduction and grooming to persuade an immature and inexperienced girl to have sexual intercourse or whether, on the other hand, the case is one involving a mature, sexually experienced girl of just under 17 years of age who, of her own motion, positively wishes to have sexual intercourse with the male.
In his sentencing remarks in the present case, his Honour said this:
You knew her age, you knew that she was sexually active and you knew that she had been involved in sexual relations with an older man or men. You admit that knowing all of those factors it was your responsibility to discourage her and to ensure that no sexual contact took place. I accept that [AC] was a willing participant in the sexual activity between you but as you well knew persons under the age of 17 years cannot consent to sexual intercourse. …
As a police officer you were in a position of great responsibility. That breach of trust amounts to a circumstance of aggravation. Principles of general deterrence assume great importance in circumstances such as these. A paramount policy of the criminal law is to protect children and adolescents from sexual exploitation and their own immature sexual inclinations. …
As your counsel submitted, ‘your decision to engage in sexual intercourse with the victim was unlawful and morally and professionally reprehensible. Your plea of guilty and resignation from the police force is an acknowledgment of your legal moral and professional culpability.’
Your counsel also made the submission that the complainant ‘was 16 years of age at the time of the offending and, at law, incapable of consenting to the sexual activity. However, the evidence demonstrates that she was sexually experienced, sexually adventurous and had a predilection for sexual activity with older men. She was proactive in her pursuit of sexual activity with you’. Your counsel submitted that ‘The description of her conduct as “flirtatious” is an understatement’, and said that ‘Her pursuit of you for sexual activity is apparent from the context of the text messages she sent to you and the conversations she had with her brother and others about you and her sexual interest in you and in sexual activity with you’.
Such matters have been said by the Court of Criminal Appeal in R v B, J to be relevant to sentencing considerations.[5] (Emphasis added)
[5] R v B, J [2007] SASC 67.
It can be seen that all that the Judge said here was that such matters are “relevant to sentencing considerations”. His Honour did not use the word “mitigate” and he did not use any words which implied that such matters positively mitigated such offending.
Importantly, when referring to the considerations constituting good cause to suspend the sentence, his Honour did not refer to this particular matter. His Honour stated:
However, I take into account your guilty plea, your previous good record, your remorse and contrition, the steps you have undertaken to seek assistance, your engagement in rehabilitation, the isolated nature of the offending and my assessment that you are unlikely to ever re-offend.
I bear in mind the often cited observation that a suspended sentence is a very real form of punishment, and that a suspended sentence is capable of giving effect to the policies of general and personal deterrence.
Ultimately, it seems to me that the interests of the community are better served by enabling you to continue your rehabilitation to address your behavioural issues, to take up employment and contribute to the community and to emotionally and financially support your young daughter rather than by requiring you to serve an immediate term of imprisonment.
I find that good reason exists to suspend the sentence of imprisonment …
In my view, the Judge did no more than have regard to an authority of this Court to which he was properly referred by counsel. There is no indication that he misapplied that authority.
Consideration of the disposition of the application
Even on the most serious view of the offending for which the Crown contends, there was material before his Honour which could support the exercise of the discretion to suspend the sentence. This included the isolated nature of the offending; the respondent’s early guilty plea; the respondent’s positive remorse and his swift resignation from the police force; the positive good character and antecedents of the respondent and the strong character reference material tendered to the Court. The Judge also noted “the steps that the respondent had undertaken to seek assistance and his engagement in rehabilitation” ─ his Honour here alludes to the fact that the respondent had, as at the date of the psychological report dated 31 March 2014 which was tendered on the sentencing proceedings, consulted with a psychologist on a regular basis on 19 occasions from 25 March 2013 and that this has had a positive effect on his rehabilitation. Further, the respondent has lost his career which affects him deeply; while this loss is not a substitute for the punishment that the Court must impose, nor should it be ignored as a background fact. His Honour’s assessment that the respondent is unlikely to ever re-offend would appear justified.

Having regard to all of the above material, the proposition that no Judge could reasonably have suspended a prison sentence in all of the present circumstances is not capable of being established.
Crown appeals against the suspension of a sentence
In the recent decision of this Court in R v McPartland and Polkinghorne[6] the general principles in relation to the correct approach to a Crown appeal are discussed and I will not repeat what was said there. That case involved respondents who had received custodial prison sentences and did not deal with an application for permission to appeal against suspension of sentence. It has always been recognised that when a person has received a suspended sentence, the principles of double jeopardy loom large. In the decision of this Court in R v Kong, this matter is stressed. The Court there said:[7]
[6] [2014] SASCFC 84.
[7] [2013] SASCFC 15.
[33]The interrelationship between s 340 and 353 has been considered in R v Harkin.[8] The effect of s 340 is to remove the Court’s discretion to have regard to the principle of double jeopardy in sentencing a defendant, once it is decided that permission should be granted to the Director. Gray and Sulan JJ, in a joint judgment, observed that the words of s 340 make it clear that the Court is precluded from having regard to the rule relating to double jeopardy when resentencing. However, the rule still applies when considering whether permission to appeal should be granted to the Director. White J, in a separate judgment, agreed that that was the effect of s 340.
[34]In R v Marien,[9] the Court, Gray, Sulan and Blue JJ, confirmed the decision in Harkin and concluded that s 340 does not displace the sentencing double jeopardy consideration in determining whether to grant permission to appeal.
…
[56]In R v Hicks,[10] the Court considered a prosecution appeal in which the main thrust of the attack on the sentence was directed against the suspension of the sentence. King CJ said:[11]
The discretion to suspend the sentence exists where the court is of the opinion that, having regard to the factors enumerated in s 4(2a) of the Offenders Probation Act 1913, it is expedient to do so. Amongst the enumerated factors are character, antecedence, age and health. The learned sentencing judge formed that opinion and, unless it can be seen that there are no reasonable grounds upon which such an opinion could be formed, the discretion to suspend must be held to have arisen. If the discretion arose, it was for the learned sentencing judge to exercise it. It was his discretion and this Court is not authorised to substitute any view which it might hold as to the appropriate exercise of the discretion for that of the judge in whom it was vested by law.
[57]In R v M, H,[12] Gray J, with whom Duggan and White JJ agreed, referred to the approach the Court should take in the case of a Crown appeal against the suspension of sentence. He observed:[13]
Accordingly, a Crown appeal against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. Furthermore, an error must be identified before a sentence may be interfered with. As Kirby J explained in Dinsdale:
As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
[8] (2011) 109 SASR 334.
[9] [2011] SASCFC 116.
[10] (1987) 45 SASR 270.
[11] (1987) 45 SASR 270, 272.
[12] [2007] SASC 41.
[13] [2007] SASC 41, [19].
In Kong, there were added complications, one of which was that the Court was of the view that the term of imprisonment was manifestly inadequate. However, the Court was not persuaded that, even if a significantly longer term had been imposed, it would have been a plainly unreasonable exercise of the power to suspend that longer term. That being so, the Court considered that the appropriate disposition was to refuse permission to appeal. Their Honours stated:[14]
[100]However, we are not persuaded that suspension, even of the significantly longer sentence which, in our view, should have been imposed, would have been a plainly unreasonable exercise of the power conferred by s 38 of the Criminal Law (Sentencing) Act 1988 (SA).
[101]Unsurprisingly, the Judge was much impressed by how the respondent had lifted himself out of the traumatic and deprived circumstances of his early years. He is highly regarded by his wife’s family and many others in the community. He is obviously a competent and diligent worker. The respondent has the capacity to make a substantial contribution to his community.
[102]This Court must first deal with permission. There are circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is erroneously lenient.[15] Factors such as a defendant’s personal circumstances, the defendant’s progress towards rehabilitation, the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild his life are just some of the factors which are relevant to which the exercise of a residual discretion to refuse a Crown appeal.
[103]It would be a crushing reversal of fortune for a man who left the dock nine months ago, believing that he would not be taken from his family and would be able to continue his rehabilitation in the community, to now be required to serve a lengthy and immediate custodial sentence.
[104]In this case, to grant permission to the Crown to appeal and to allow the appeal would be at too high a cost, in terms of justice, to the defendant. Without reaching a final conclusion as to whether or not we would have suspended the longer sentence we would have imposed in an exercise of our discretion, which we acknowledge to be very favourable to the respondent, we would refuse permission to appeal.
[14] [2013] SASCFC 15.
[15] See Green & Quinn v The Queen (2011) 244 CLR 462, [2].
Conclusion
The present case is a fortiori that of Kong in that here the head sentence was within the range available to his Honour. As to suspension of sentence, the principles of double jeopardy strongly militate in favour of refusing permission to appeal in the circumstances of this case. Although there are opposing considerations which I have taken into account, I conclude that the appropriate order is that permission to appeal should be refused.
BLUE J. I agree.
STANLEY J: I would refuse permission to appeal. I agree with the reasons of Peek J.