R v Knoote-Parke - [2016] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KNOOTE-PARKE
[2016] SASCFC 37
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Doyle)
6 April 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GOOD CHARACTER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The appellant pleaded guilty to four counts of unlawful sexual intercourse. The sentencing judge imposed one sentence of imprisonment for all four offences. His Honour fixed a head sentence of three years two months imprisonment, with a non-parole period of 21 months.
The appellant appealed on the ground that the sentencing judge erred in holding that because the appellant’s previous good character had assisted him in the commission of his offences, it could not have any mitigatory effect upon his sentence.
Held per Doyle J (Sulan and Blue JJ agreeing), allowing the appeal:
1. In respect of the two offences committed prior to the introduction of s 10(3)(ba) of the Criminal Law (Sentencing) Act 1988 (SA), the sentencing judge erred in affording the appellant’s good character no weight at all.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10(3), s 10(3)(ba), s 10(1), s 10(1)(l), s 10(1)(m), referred to.
Ryan v The Queen (2001) 206 CLR 267; R v Liddy (No 2) (2002) 84 SASR 231, discussed.
R v Horstmann (2010) 269 LSJS 42; R v Kreutzer (2013) 118 SASR 211; House v The King (1936) 55 CLR 499; KBA v R [2015] NSWCCA 55; R v Maynard (2014) 121 SASR 181; R v Miller (2000) 76 SASR 151, considered.

R v KNOOTE-PARKE
[2016] SASCFC 37
Court of Criminal Appeal: Sulan, Blue and Doyle JJ
SULAN J:

I agree with Doyle J. I add the following comments.
The sentencing process is complex. It requires the sentencing Court to have regard to various factors, to weigh them and balance them in each individual case. Factors are both mitigating and aggravating. Some are neither, but nevertheless are relevant. Clearly the seriousness of the offence is relevant. The seriousness of the offence must also be viewed in the context of the gravity of the offending. As Doyle J has explained the offending of Ryan[1] and Liddy[2] is far different from the appellant’s offending. The sentencing process also requires the Court to consider other factors such as age of the offender and victim, whether the offending was a course of conduct and for how long that conduct continued. Factors of remorse and rehabilitation are relevant. As Doyle J has stated, some of the relevant matters overlap and cannot be considered in isolation of others. In my opinion legislators need to be cautious when legislating to limit the courts discretion in the sentencing process. Every case is different. Legislation which prohibits a court from having regard to a relevant matter may well lead to injustice. It is clear from Ryan and Liddy that previous good character has little weight in cases of multiple sexual offending against children over a long period, by a person in a position of trust. The circumstances in this case are far removed from the circumstances in Ryan and Liddy. To prohibit the Court from having any regard to the defendants’ prior good character, may have consequences which were never intended. Further to remove one relevant factor of good character, in this case, creates difficulties when considering other relevant factors such as remorse and rehabilitation. When a sentencing judge considers whether an offender is genuinely remorseful for his conduct it is difficult, if not impossible, to disengage that question from his previous good or bad conduct. Similarly, rehabilitation requires a consideration of prior good conduct.
[1] Ryan v The Queen (2001) 206 CLR 267.
[2] R v Liddy (No 2) (2002) 84 SASR 231.
I agree with Doyle J that the conduct in this case was serious. It is undeniable that the appellant was in a position to commit the offences through having met the victim at a discotheque run by the police. However he is not a paedophile. He did not target his victim and groom her as is the case in many instances of sexual offending against children. The sexual relationship followed a long friendship. The victim had almost reached the age of consent. The offending occurred over about four weeks. The appellant was weak and thoughtless in entering into a sexual relationship with the victim. The offending must result in imprisonment. Nevertheless there are compelling reasons for the Court to show mercy in a case in which a person who has offended, has paid a high price for his conduct and demonstrated that he is truly remorseful and is unlikely to reoffend.
BLUE J:
I agree with Doyle J.
I add an additional observation in support of Doyle J’s conclusions that, under general sentencing principles (leaving aside section 10(3)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act)), good character has relevance in the sentencing process independently of prospects of rehabilitation, and that section 10(3)(ba) of the Sentencing Act does not require the sentencing court to ignore good character when assessing prospects of rehabilitation.
Under general sentencing principles, good character is relevant to punishment, including the sentencing principle under section 10(1)(j) of the Sentencing Act referring to the need to ensure that the defendant is adequately punished for the offence, as well as matters such as prospects of rehabilitation. In R v McInerney,[3] King CJ said:
The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it. A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed. Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or negate any leniency by reason of good character.… The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgement and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.[4]
[3] (1986) 42 SASR 111.
[4] At 113. (Emphasis added).
While section 10(3)(ba) of the Sentencing Act precludes the sentencing court allowing leniency for past good character in the manner identified by King CJ in the passage extracted above, it does not require the sentencing court artificially to disregard good character when assessing future prospects of rehabilitation.
DOYLE J:
The appellant pleaded guilty to four counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). These were counts 1, 3, 6 and 7 on the Information upon which the appellant was charged. The prosecution tendered no evidence with respect to the remaining charges on that Information.
The sentencing judge imposed one sentence for all four offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). His Honour fixed a head sentence of three years two months imprisonment (reduced by 30 per cent from a notional starting point of four years six months on account of the appellant’s guilty plea), with a non-parole period of 21 months. The Judge declined to suspend the sentence of imprisonment, finding that no good reason to do so existed.
The appellant sought permission to appeal against both his sentence of imprisonment and the refusal to suspend that sentence. The application for permission was referred to this Court for hearing in conjunction with the appeal.
The appellant was given leave to amend his proposed grounds of appeal at the commencement of the hearing. The appellant’s essential complaint is that the sentencing judge erred in holding that because his previous good character (including during his time as a police officer) assisted him in the commission of his offences, it could not have any mitigatory effect upon his sentence.
Adopting the terminology used by this Court,[5] the appellant contended that this involved both process and outcome errors. The process error lay in attaching no weight to the appellant’s good character in determining the sentence of imprisonment and in exercising the discretion to suspend. In considering this issue it is significant that two of the offences occurred before the introduction of s 10(3)(ba) of the Sentencing Act, and two of them after its introduction. As explained later, the asserted process error manifested in slightly differing ways in respect of the offences before and after this amendment. The outcome errors lay, it was submitted, in the determination of a sentence which was unreasonable or plainly unjust in the sense those terms are used in House v The King,[6] both as to the duration of the term of imprisonment and as to the refusal to suspend the sentence of imprisonment.
[5] R v Horstmann (2010) 269 LSJS 42; [2010] SASC 103 at [36]; R v Kreutzer (2013) 118 SASR 211 at [10].
[6] House v The King (1936) 55 CLR 499 at 504-505.
In my view, the sentencing judge did fall into process error in respect of his approach to the appellant’s good character. While it is not a matter which needed to be afforded great significance, his Honour nevertheless erred in affording it no weight at all in respect of the two offences that occurred before the introduction of s 10(3)(ba) of the Sentencing Act. Accordingly, and because one sentence was fixed for all four offences, it is appropriate that this Court exercise the sentencing discretion afresh in respect of all offences. There is therefore no need for this Court to consider whether the sentence imposed was affected by outcome error.
Circumstances of the offending
The following summary of the offending is taken largely from the sentencing remarks.
The four offences occurred over approximately two weeks, between 31 July 2014 and 11 August 2014. The appellant was 51 years of age at the time, and was a serving police officer. The complainant was 16 years of age. She turned 17, the age at which she was capable of lawfully consenting to sexual intercourse, on 25 September 2014.
The appellant met the complainant when she was about 13 years of age at a police sponsored Blue Light disco where he was working as a volunteer. The disco was a regular event which the complainant continued to attend, and through which the appellant and complainant became acquainted. The appellant was also involved in a police band. In 2014, when the complainant was 16 years of age, the appellant suggested that she try out for the band. She did, and was successful, and as a result the complainant and appellant thereafter attended band practice together on a regular basis.
The appellant soon introduced himself to the complainant’s mother and suggested that he drive her daughter home from practice from then on. The complainant’s mother agreed and subsequently gave the appellant permission to drive her daughter to other places. The acquaintanceship between the appellant and complainant fairly quickly developed into a friendship which over time became increasingly close.
The appellant was stationed close to where the complainant went to school, and as their friendship became closer they would sometimes meet before school or during the day and would have coffee together at a café in the police building. Their friendship developed to the point where the appellant and complainant were exchanging text messages and discussing personal matters on a regular basis. By the end of July 2014 some of the appellant’s texts were becoming flirtatious and sexual. As the appellant later acknowledged (when interviewed by a police officer after his offending came to light), the complainant came to confide in him. He gave her advice about matters of intimacy, and generally became embroiled in her life with the result that the nature of their relationship became blurred. The complainant had been sexually active and the appellant knew this.
The appellant also later explained that around this time “things were not going well” within his marriage, in the sense that he was not receiving very much attention from his wife. He found the attention he was receiving from the complainant to be very flattering.
The complainant developed feelings for the appellant, in that she liked him and became attracted to him. She did not think anything would come of the relationship because the appellant was married. However, as the appellant later told the interviewing officer, he probably suggested to the complainant that he wanted to engage in sexual behaviour with her, and that her feelings were apparent to him.
As the sentencing judge noted, this was how things stood towards the end of July 2014. By this stage the appellant must have recognised that the situation was moving beyond the bounds of propriety and that it was up to him to take immediate steps to regularise their friendship, thus obviating the risk of any sexual activity occurring. As the sentencing judge also observed, it was implicit from what the appellant later told the interviewing officer that he recognised that this was so, and that even after sexual activity had commenced he wanted it to stop but did not know how to bring it to an end.
The course of conduct which included the appellant’s offending commenced in late July 2014. Before reciting what followed, the sentencing judge reminded himself that the appellant was not charged with all of the sexual activity which comprised the course of conduct, but added that the activity other than the four offences was nevertheless relevant such that the whole sequence of events needed to be described.
On 31 July 2014, with the continuing permission of the complainant’s mother, the appellant picked up the complainant from her home and drove her to the police barracks for band practice. They arrived early and nobody else was there. They kissed and fondled each other’s bodies. The appellant then inserted his fingers into her vagina thus engaging in intercourse with her and committing the first of the charged offences.
The appellant drove the complainant home after band practice. He parked near her home. They kissed and the appellant fondled the complainant’s breasts inside her clothes and inserted his fingers into her vagina.
On the following day, 1 August, the appellant and complainant met by arrangement at a shopping centre. The appellant drove the complainant to her home where they again kissed. On this occasion they also removed each other’s clothing and engaged in mutual foreplay. The appellant inserted his penis into her vagina, thus committing the second charged offence.
The appellant collected the complainant from her home on the following day and took her for a drive. He told her that the two of them should not have engaged in intercourse and that he should have waited until she was 17 years of age (which would occur on 17 September). He also told her that he could lose everything, including his job, wife and house. He added that she would be the victim and he might go to gaol.
The appellant and complainant were in contact with each other over the next few days, and then on 7 August he picked her up from her home and drove her to band practice. They again arrived early, and while nobody was around they kissed and fondled each other inside their underwear and touched each other’s genitals. He also gave her a vibrator on this occasion. The appellant drove the complainant home after practice and again parked near her home. They again kissed. She touched him on his penis, and he inserted his fingers into her vagina.
On the following morning, 8 August, the appellant picked the complainant up from her home again. While they were driving, he spoke about having sex with her that evening. He picked her up after school and drove her to her home. However, when they arrived her mother’s housemate was present and so they arranged to meet the following day.
On 9 August, the appellant went to the complainant’s home. He engaged in cunnilingus, inserted his fingers into her vagina and inserted the vibrator he had given her into her vagina as well. He then inserted his penis into her vagina, thus committing the third charged offences.
Two days later, on 11 August, the appellant and complainant spent some of the afternoon together and he eventually drove her home. They again kissed, and he again inserted his fingers into her vagina and engaged in cunnilingus with her. He inserted his penis into her vagina, thus committing the fourth charged offence.
The appellant and complainant met again the following day at the complainant’s home, and they again kissed and fondled each other.
The appellant and complainant stayed in touch over the next few days, and the appellant arranged to have sex with her at her home the following weekend while her mother was at work. However, this did not eventuate.
The complainant had told some of her school friends that she had been having intercourse with the appellant, and on 14 August the school counsellor came to hear of this, and the police became involved.
The complainant was spoken to by the counsellor at some stage that day. She subsequently texted the appellant, and they agreed to deny that anything untoward had happened between them.
The appellant was spoken to by police that evening. However, the interviewing officer’s information was incomplete and the only allegations which were put to him were that he had engaged in intercourse with the complainant on 1, 9 and 11 August 2014. The appellant admitted that this had occurred. He also admitted that he knew that the complainant was 16 and that he knew that what he had done was against the law.
The appellant resigned from his position with the police force soon after his arrest, because he did not want to bring the police force into disrepute. He also resigned from the band.
The sentencing judge’s approach
The Judge sentenced the appellant on the basis that the acts of intercourse constituting the four counts of unlawful sexual intercourse to which he pleaded guilty constituted a course of conduct. While the relevant context included the other sexual activity between the complainant and the appellant, the appellant was, of course, not to be punished for this activity.
The Judge sentenced on the basis that the appellant knew that the complainant was 16 at the relevant time, and that what he was doing was against the law. His Honour also proceeded on the basis that the complainant was a willing participant in all of the sexual activity that occurred.
Having referred to the appellant’s admission of his offences and resignation from the police force, the Judge accepted that the appellant was remorseful, contrite and ashamed.
The appellant was examined by a psychologist. As the Judge recorded, the psychologist was of the view that the appellant had a complex and contradictory psychological profile which led him to commit the offences. The psychologist explained that while the appellant was initially preoccupied with why he committed his crimes, and had limited insight into the potential effects of his conduct on the complainant, he had begun to develop increasing insight into the serious, exploitative and corruptive nature of his offences, and into the potential effects of them upon the complainant. His focus had shifted from self pity to contrition.

The Judge accepted that the appellant was not to be regarded as innately paedophilic. There was no suggestion by the Judge (or by the prosecution, below or on appeal) that the appellant groomed his victim or otherwise acted in a predatory manner.
The Judge referred to the appellant’s excellent employment history, culminating in his joining the police force in 2001 in order to satisfy his long held desire to serve the community.
After resigning from the police force when his offending was revealed, he subsequently obtained employment in the building industry. He made full disclosure to his employer before the charges became public, but his employer did not accept his resignation. He was regarded as a valued employee such that imprisonment would be detrimental to the business.
The Judge referred to the number of references that had been provided, with people speaking highly of the appellant, and with some stating that they regarded his offences as being completely out of character.
The Judge noted that the appellant’s wife was standing by him. His Honour added that while the appellant had lost his reputation, that was an ordinary consequence of the commission of crimes such as these. The Judge also noted the other consequences for the appellant, including that he had experienced significant financial losses, lost a fulfilling career, lost the enjoyment of the police band, experienced adverse publicity over and above the ordinary, created very difficult employment prospects for himself, and his wife would suffer significant financial and emotional hardship were he to be imprisoned.
The Judge accepted that the appellant was plainly of good character before he embarked upon the course of conduct which constituted his offending, and had no previous convictions. However, for reasons elaborated upon below, his Honour held that because this previously good character had been used to assist the appellant to commit his offences it was not capable of having any mitigatory effect.
The Judge did, however, take account of the appellant’s prospects of rehabilitation and the unlikelihood of him re-offending. After referring to the irrelevance of good character, his Honour said:
This, notwithstanding, and even without having any regard to your previous good character and lack of convictions, it is nonetheless plain that it is highly unlikely that you will ever attempt to offend in this way again and that your prospects for rehabilitation are plainly very good and you will be sentenced on that basis.
The Judge concluded his sentencing remarks as follows:
You were 35 years older than your victim. You used your good character and status as a police offer to assist you to commit your crimes. Your crimes were very serious and they are not isolated. You acted contrary to your oath and your obligations as a police officer and your conduct had the potential to undermine the confidence in the police force which is essential to its effective functioning, even though you engaged in the sexual activity concerned on your own time.
You must have known what the potential ramifications for the police force were, but you pressed on regardless.
Moreover, your crimes have had very significant after-effects on your victim and it is a primary policy of the criminal law to protect young people from sexual predators by imposing sentences which will provide an adequate measure of deterrence to others.
You are to know that I have taken everything which has been said and written about you on your behalf into account and that I have given each apsect of it the significance that I think it deserves.
You face a maximum sentence of imprisonment for ten years for each of your crimes and the maximum reduction which can be extended on account of your pleas is 30%.
I will fix one sentence to cover all four of your crimes. You will be sentenced to imprisonment for three years and two months. But for your pleas it would have been four years and six months. I fix a non-parole period of 21 months. Your crimes are, in all the circumstances, so serious and the need for general deterrence is such that they outweigh your prospects for rehabilitation and the other consideration operating in your favour to which regard can properly be had, such that good reason to suspend your sentence does not exist.
The legislative framework
Section 10(1) of the Sentencing Act provides that in determining the sentence for an offence, a court “must” have regard to the factors and principles listed in that section as may be relevant in a given case. Relevantly for present purposes, those listed factors include s 10(1)(l) (the character, antecedents, age, means and physical or mental condition of the defendant) and s 10(1)(m) (the rehabilitation of the defendant).
Section 10 was amended in 2014 to introduce s 10(3), which is in the following terms:
(3)     In determining the sentence for an offence, a court must not have regard to any of the following:
(a)     the fact that a mandatory minimum non-parole period is prescribed in respect of the sentence for the offence under this Act or another Act;
(b) any consequences that may arise under the Child Sex Offenders Registration Act 2006;
(ba)    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.
This amendment was effective from 3 August 2014, being a date between the first two counts and the last two counts of the appellant’s offending.
Before the sentencing judge, there was a dispute as to whether s 10(3) operated retrospectively in respect of the two earlier offences. The Judge proceeded on the basis that the section only operated prospectively such that the first two offences fell to be considered under the pre s 10(3) regime (or so-called common law regime), whereas the second two offences were to be considered in light of s 10(3). Neither party contends to the contrary on appeal and I proceed on this basis.
Accordingly, it is necessary for the purposes of this appeal to consider the approach to good character both before and after the introduction of s 10(3).
Approach to good character before the introduction of s 10(3)
Before the introduction of s 10(3) of the Sentencing Act the approach to character in the sentencing process under s 10(1)(l) mirrored the common law position.
The leading authorities in this respect are Ryan v The Queen[7] and R v Liddy (No 2).[8]
[7] Ryan v The Queen (2001) 206 CLR 267.
[8] R v Liddy (No 2) (2002) 84 SASR 231.
In Ryan v The Queen, a priest pleaded guilty to 14 counts of sexual offences against 12 young boys over 20 years. He also asked that 39 additional offences of a similar kind be taken into account. Testimonials were received from former parishioners, priests and others of the accused’s good character, reputation and positive work and achievements as a parish priest. The sentencing judge said of the defendant’s asserted good character that, whatever he had done and achieved, he was not a good man and the Judge could see no good in him. The Judge held that the defendant’s “unblemished character and reputation” did not entitle him to “any leniency whatsoever”. The accused was sentenced to 16 years imprisonment with a minimum term of 14 years.
On appeal, the New South Wales Court of Appeal held that there was no error of principle in the sentencing judge’s approach to the defendant’s asserted good character. The High Court, however, allowed the defendant’s appeal. It held by majority (McHugh, Kirby and Callinan JJ, Gummow and Hayne JJ dissenting) that the sentencing judge erred in not having regard to the defendant’s good character. Each member of the Court acknowledged the potential relevance of good character. The difference between the majority and minority approach lay in their slightly differing views as to the relevance of that factor in the particular case. The majority view was that the sentencing judge erred in attributing no weight at all to the defendant’s otherwise good character, whereas the minority held that the sentencing judge was entitled on the particular facts of that case to attribute no weight to the defendant’s otherwise good character.
The Court made some general observations as to the notion of good character in the sentencing process. A distinction was drawn between a defendant’s character (being his or her inherent moral disposition or qualities) and reputation (being the public estimation of that person), albeit that this line is often blurred in practice. A distinction was also drawn between the use of evidence of good character as relevant or probative in the determination of guilt, and its role in the sentencing process. It was also noted that there was some ambiguity in the expression “good character”. It sometimes refers only to an absence of prior convictions, thus involving an essentially negative concept. On other occasions it refers to something more positive in nature, involving or including a history of previous good works and contribution to the community.[9]
[9] Ryan v The Queen (2001) 206 CLR 267 per McHugh J at [27]-[29], per Gummow J at [66], per Kirby J [101].
In relation to sentencing, the general position or approach to character was that good character may operate in mitigation, whereas bad character cannot operate in aggravation. The reason for the latter is that the defendant is not to be punished or punished again for offences other than those for which he or she is being sentenced – albeit that this view assumes that bad character is measured by criminal behaviour alone.[10]
[10] Ryan v The Queen (2001) 206 CLR 267 per McHugh J at [33], per Gummow J at [67], per Kirby J at [101], per Hayne J at [143], per Callinan J at [174].
As to why good character operates in mitigation, Gummow J said that there are various reasons for this:[11]
… “good character” is treated as relevant to the sentencing process for various reasons. For example, where the offence is an isolated lapse representing human frailty or the offence is of strict liability, to a person valuing a good reputation the mere fact of conviction may be a punishment. “Good character” in such a case also may indicate the capacity of the person to appreciate the censure inherent in the outcome of the criminal process and may suggest that repetition of the criminal conduct is unlikely.
[11] Ryan v The Queen (2001) 206 CLR 267 per Gummow J at [68], omitting references.
The only other member of the Court to address the conceptual foundation for credit being afforded in the sentencing process to good character was McHugh J. His Honour said that being otherwise of good character may in some circumstances suggest that the defendant’s actions in committing the offence in question were “out of character” and that he or she is unlikely to re-offend. For that purpose, the absence of previous convictions is usually regarded as evidence of good character. McHugh J also referred to another, but less articulated, reason for the relevance of good character, namely the idea that a “morally good” person is less deserving of punishment for a particular offence than a person who is “morally neutral or bad”. After extracting a passage from a text referring to this rationale as “remarkable”, McHugh J observed that a defendant’s good character was nevertheless an established mitigating factor in the sentencing process.[12]
[12] Ryan v The Queen (2001) 206 CLR 267 per McHugh J at [30]-[31].
McHugh J’s description of the rationale for the relevance of good character suggests a significant overlap with factors often addressed under the labels of risk of re-offending and prospects of rehabilitation. Despite this overlap it is at least implicit in the Court’s approach in Ryan v The Queen that the notion of good character does have some independent relevance in the sentencing process. Despite some uncertainty about the conceptual basis for this independent significance of good character, it has become an accepted part of the sentencing process.
As to the approach to, and significance of, good character in the sentencing process, McHugh J described it as involving a two stage process. His Honour said:[13]
In considering a prisoner’s good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account.
[13] Ryan v The Queen (2001) 206 CLR 267 per McHugh J at [36].
In relation to the weight of to be afforded to good character, McHugh J said that this will vary significantly depending on the case:[14]
Sentencing is not a mathematical process. Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance. The nature of the offences for which the appellant was being sentenced meant that his otherwise good character could only be a small factor to be weighed in the sentencing process.
First, there were multiple offences involving repeated acts committed over a number of years. They were not isolated incidents which might be said to be out of character. Secondly, the appellant was, as his counsel conceded before Judge Nield, leading a double life. Over many years, the appellant was doing “good works” while he was committing grave offences. This contradiction indicates that the appellant’s otherwise good character was a minor factor to be weighed. Thirdly, the appellant committed the offence in the course of his priestly duties and it was as a priest that he did the “good works” which are at the heart of his claim of good character. This reduces the weight that ought to be given to his otherwise good character. Fourthly, and related to the third point, the offences involved breaches of trust.
[14] Ryan v The Queen (2001) 206 CLR 267 at [33]-[34], footnotes omitted.
McHugh J reasoned that in light of the above circumstances, the appellant was not entitled to significant leniency on account of his otherwise good character. However, he was entitled to some leniency, and it was thus an error on the part of the sentencing judge to give the defendant no leniency whatsoever on this account. Accordingly, the appeal was allowed.[15]
[15] Ryan v The Queen (2001) 206 CLR 267 per McHugh J at [35], [37].
Kirby J reasoned similarly, holding that while the defendant’s abuse of his position of trust with many young boys made it impossible to give weight to various aspects of the performance of his priestly duties, nevertheless this left other activities and work which ought to have redounded to the defendant’s benefit. It was an error to hold that the defendant was not entitled to “any leniency whatsoever”.[16]
[16] Ryan v The Queen (2001) 206 CLR 267 per Kirby J at [104], [107], [112].
Callinan J held that while good character will sometimes have a significant mitigatory effect, in other cases it will receive less weight. His Honour gave as examples of the latter cases where the offence or offences are part of a prolonged course of conduct, where a series of offences is deliberately and carefully planned and executed, where a person abuses high office to commit offences, or where a person uses their good character to increase the prospects of successfully completing their crime.[17] Turning to the defendant in Ryan v The Queen, Callinan J said:[18]
Here the appellant had, for a long time, done many good works. Much of the shine of these was taken off by his gross misconduct in abuse of his office, but not all of it. Character is not, as has been observed, a one-dimensional feature of any person. There is no reason why a priest who had conducted himself diligently and helpfully in other respects over many years, and has earned a good character in those respects, should not be treated somewhat differently from a priest who has not conducted himself so as to earn a good character, but had committed the same offences as this appellant. The sentencing judge made it clear that he would disregard entirely the appellant’s good works. He did so in strong, indeed understandably strong language, but without perhaps the detachment that his role required. His Honour refused even to find good character at all. So to hold was, in my opinion, wrong, and to fail to take some account of the appellant’s good character otherwise was an error of principle calling for correction by the Court of Criminal Appeal.
[17] Ryan v The Queen (2001) 206 CLR 267 per Callinan J at [174]-[176].
[18] Ryan v The Queen (2001) 206 CLR 267 per Callinan J at [178], footnotes omitted.
Gummow and Hayne JJ dissented on essentially factual grounds.
After accepting the general relevance of good character to the sentencing process, Gummow J held that it was open to the sentencing judge to conclude that the good works upon which the defendant relied in partial discharge of his office of trust and influence were liable wholly to be displaced by the malign exercise of the power of his religious office. As a result no error of principle was disclosed to attract appellate intervention.[19] Hayne J reasoned that while good character “might” be relevant in some cases, a sentencing judge is not “bound” to give it a mitigatory or ameliorative effect in every case. There was no absolute rule of general application, and the sentencing judge was entitled to take the view that in that case the defendant’s “good character in other respects” was wholly outweighed by the defendant’s wrong doing.[20]
[19] Ryan v The Queen (2001) 206 CLR 267 per Gummow J at [70].
[20] Ryan v The Queen (2001) 206 CLR 267 per Hayne J at [136], [143], [149].
In R v Liddy, this Court took a similar approach to good character in the sentencing process. In that case the defendant was found guilty of six counts of unlawful sexual intercourse with persons under the age of 12 years, three counts of indecent assault and a count of offering a benefit to a witness. The sentencing judge referred to the connection between the defendant’s offending and his positions as a Magistrate and coach at a life-saving club, which her Honour considered aggravated his offending. The defendant appealed against his sentence on a number of grounds, one being the sentencing judge’s failure to give him any credit for his otherwise or previous good character.
After summarising the approach of the High Court in Ryan v The Queen, Mullighan J (with whom Williams J agreed) said:[21]
There is no clear statement by three members of the court in Ryan that otherwise good character should usually operate in mitigation. Obviously there are clear cases where it could reduce a sentence, however, in cases such as the present case I do not think this matter is of much significance. The appellant used his otherwise good character and his position of trust and prominence in the community to gain the confidence of the parents of the boys and, indeed, of the boys themselves, which is a matter of aggravation. The fact that he had otherwise lived his life without offending and had made positive contributions to the community is a matter in his favour but, in all the circumstances, does not justify a reduction in the sentence.
[21] R v Liddy (No 2) (2002) 84 SASR 231 at [23].
Gray J reasoned as follows:[22]
The question of whether it is appropriate for a sentencing judge to take into account prior good works, good character and reputation in cases of sexual offending has been debated. The majority in Ryan v The Queen considered that credible evidence of prior good character can never be wholly irrelevant to the type or quantum of sentence imposed. However, Gummow and Hayne JJ preferred to limit the scope of a sentencing judge’s discretion. They refused to attach any significance whatsoever to evidence of prior good character.
Ryan v The Queen confirms that a sentencing judge must ameliorate individual sentences or the total effective sentence by attaching some weight to an offender’s proven prior good character. In the present case the weight that can be afforded to the appellant is limited. This is in part because the offences were not isolated acts but formed part of a prolonged course of criminal activity which included repeated abuse against his victims; the length of time the appellant remained undetected; the extent to which the offences were deliberate and carefully planned; the appellant’s benign appearance or good standing was the very mask by which the crimes were committed; the gravity of the breach of trust involved and the need to give priority to deterrence. As Hayne J explained:
the fact that an offender has done good things in the past, or has been well reputed in the community, may, Janus-like, wear two aspects. The fact that this offender was, to outward appearances, a devoted minister to his adult parishioners is admirable. But the appellant was able to secure the trust of his victims and their parents because he was thought to be worthy of respect.
In resentencing the appellant a relevant consideration includes the need for some credit to be given for his previous good works and his prior good character and reputation. However, any credit arising from these matters must be measured against the use of his position as a surf lifesaving coach and his offices as a magistrate as instruments to effect his criminal purposes. In the particular circumstance of this case only limited credit can be afforded.
[22] R v Liddy (No 2) (2002) 84 SASR 231 at [217]-[219].

In my view the approaches of all members of the Courts in Ryan v The Queen and R v Liddy are broadly consistent. Each of their Honours accepted the potential relevance of good character but acknowledged that the weight it is to receive will depend upon the circumstances of the case. While the majority in Ryan v The Queen and Gray J in R v Liddy would have afforded some (albeit limited) weight to good character, in affording it no weight the minority in Ryan v The Queen and Mullighan and Williams JJ in R v Liddy differed simply as to the extent to which the nature of the offending in those cases reduced the weight to be given to the defendant’s good character. While the former accepted that it had been reduced to very limited weight, the latter went further and held that it had been entirely eliminated or outweighed. It is significant in this respect that the nature and seriousness of the offending in both Ryan v The Queen and R v Liddy was extreme in comparison with the present case.
There are numerous other cases in which it has been acknowledged that good character is a relevant consideration, but that the weight which it is to be afforded will vary according to the nature and circumstances of the offending (and in particular, the existence of any connection between the dependant’s good character and the offending). However, these authorities do not provide any greater elucidation of the principles than Ryan v The Queen and R v Liddy. A recent example is KAB v R,[23] in which the Court accepted that it was within the discretion of the sentencing judge on the facts of that case to take good character into account, but nevertheless conclude that it was of insufficient weight to have any ameliorating impact upon the sentences imposed. In that case not only was the offending serious (involving multiple child sexual assault offences), but also the good character evidence was limited (comprising merely the absence of criminal convictions and some general testimonial material which was found to be of limited weight).
[23] KBA v R [2015] NSWCCA 55at [42]-[60].
In summary, prior to the introduction of s 10(3), the position was that while bad character does not operate to increase the sentence, if a person is otherwise of good character then this must be taken into account. However, the weight which should be attributed to the defendant’s otherwise good character will vary depending on the facts. In some cases the weight afforded to good character as a mitigating factor may be significant. In other cases – for example where the offending involves multiple acts over a long period of time, or where the defendant has used their good character to assist them in committing the offence – the weight may be minimal, or perhaps even non-existent.
Approach to good character after the introduction of s 10(3)
At first blush the operation of s 10(3)(ba), once triggered, is straight forward. It means that “[i]n determining the sentence of an offender” the Court “must not” have regard to “the good character or lack of previous convictions of the defendant”. As such it simply removes good character and lack of previous convictions as relevant considerations in the sentencing process. This reflects an alteration to the approach taken before the introduction of s 10(3), in cases such as Ryan v The Queen and R v Liddy. Those cases required a more nuanced approach which would generally result in some (albeit often limited) weight being attached to proven good character even in circumstances such as those which would trigger the operation of s 10(3)(ba). Section 10(3)(ba) requires a much more rigid approach. Once that subsection is triggered, good character and lack of previous convictions receive no weight at all.
However, upon further examination, the extent of the operation of s 10(3)(ba) requires close analysis. The reason for this is the overlap between, on the one hand, considerations such as good character and lack of previous convictions, and on the other hand, prospects of rehabilitation and likelihood of re-offending. Good character and lack of previous offending are often very good indicators, although not the only indicators, of an offender’s prospects of rehabilitation and the likelihood of them re-offending. Conversely, as McHugh J explained in Ryan v The Queen, part of the rationale for credit being given for good character is sometimes said to be that an offender who has acted “out of character” is less likely to re-offend.
The Solicitor-General, who appeared for the respondent, submitted that the plain wording of s 10(3)(ba) required that good character (and lack of previous convictions) be removed entirely from the sentencing process. The consequence of this was not only that s 10(1)(l) (insofar as it requires consideration of character and antecedents) became irrelevant, but also that the other limbs of s 10(1) (particularly s 10(1)(m), being the rehabilitation of the defendant) needed to be considered in the absence of, or stripped of, any consideration of good character and lack of previous convictions. In support of this submission the Solicitor-General emphasised the introductory words to s 10(3), which he contended made it clear that s 10(3)(ba) was intended to remove these considerations from all aspects of the sentencing process, and not simply to negate the operation of s 10(1)(l) and hence consideration of good character as a stand alone or independent factor. The Solicitor-General added that to take this latter approach would also be contrary to the “instinctive synthesis” approach to sentencing, as it would assume that particular factors can be considered in isolation rather than as an interdependent part of one overall process.
In my view, the Solicitor-General’s submission goes too far. The preferable construction of s 10(3)(ba) is that it operates only to exclude good character and lack of previous convictions as relevant considerations (or mitigatory factors) in their own right under s 10(1)(l). It does not operate to prevent the Court having regard to prospects of rehabilitation (and likelihood of re-offending) in light of the facts as a whole, including facts which might also have justified findings that the defendant was of good character and had not engaged in previous offending.
I acknowledge that the introductory words of s 10(3)(ba) are directed to the sentencing process as a whole. However, this subsection needs to be read in light of s 10(1), which requires that the Court “must” have regard to each of the listed matters, including not only those in s 10(1)(l) (including character and antecedents) but also the matter in s 10(1)(m) (rehabilitation).
The form and content of s 10(1) is relevant for two reasons. The first is that because it makes it mandatory that both character and rehabilitation, for example, be considered, it is to be expected that the legislature would have made it clear if it had intended not only to eliminate good character from consideration as a stand alone factor but also to alter significantly the approach to rehabilitation as a sentencing consideration. If an offender’s prospects of rehabilitation had to be determined without any consideration of their previous good character (including lack of previous convictions) this would often involve an artificial, if not meaningless, approach to rehabilitation. Secondly, while not denying or undermining the approach of instinctive synthesis that must be undertaken, by listing the relevant factors, s 10(1) operates on the premise that the various factors relevant to the synthesis can be separately identified (even though they cannot be separately evaluated or quantified).
I also note that there is nothing in the Second Reading speech in relation to the amending legislation to suggest that s 10(3)(ba) was intended to have the breadth of operation contended for by the Solicitor-General. There is reference in that speech to both an intention to reflect the common law as set out in Ryan v The Queen and R v Liddy, and an intention to confirm that there is to be no mitigation for good character where the offender has used their good character or works to assist in committing their crime. However, there is no reference to any consequential effect upon the approach to, or weight to be afforded to, the prospects of rehabilitation and likelihood of re-offending. Nor in Ryan v The Queen and R v Liddy was there any reference to any such consequential effect – albeit that the facts in those cases (unlike the present case) meant that the defendant’s prospects of rehabilitation were of limited significance.
Finally, I note that in R v Maynard[24] this Court considered the operation of s 10(3)(ba) of the Sentencing Act, holding that on the facts of that case the trial Judge was correct in holding that this subsection had the effect of removing good character from the sentencing process. However, there was no consideration in that case of the effect of s 10(3)(ba) on the limbs of s 10(1) other than s 10(1)(l).
[24] R v Maynard (2014) 121 SASR 181.
The sentencing judge’s approach to good character
The Judge commenced his consideration of good character by observing that the defendant was plainly of good character before he embarked on his course of conduct which included the offending. This observation was no doubt based upon the Judge’s earlier references to the defendant’s otherwise exemplary work history (including with the police force for over a decade), and the references which spoke highly of the defendant and described his offending as being completely out of character.
The Judge then noted a dispute between the parties as to whether this previous good character could be brought to account. His Honour commenced his analysis of this issue with the following statement of principle (which became the focus of the appellant’s challenge to the Judge’s approach):
When you committed your first and second crimes, sentencing principle provided that previous good character should ordinarily operate in mitigation and that in appropriate cases it may bring about a reduction in sentence, but that it is of little or no significance where the offender concerned has used his otherwise good character to create the trust necessary for him to gain access to his victim thus providing him with the opportunity to commit his crimes.
Obviously enough, this was intended by the Judge to state the position at common law, or under s 10(1) of the Sentencing Act prior to the introduction of s 10(3)(ba). His Honour then considered the position under s 10(3)(ba). He began by setting out at some length why he was satisfied that the appellant’s good character (and lack of previous convictions) had been of assistance to him in the commission of his crimes, such that this subsection was triggered. His reasoning was essentially that the appellant’s good character had contributed to him being a police officer and engaging in the activities that led to his friendship with the complainant and the opportunity to commit his offences. There is no challenge to this conclusion on appeal and it is not necessary to consider the Judge’s reasons for this conclusion.
By reason of the above, the Judge held that s 10(3)(ba) was triggered such that in respect of the third and fourth offences – which were governed by the amended legislation – the appellant’s good character was irrelevant and could not be taken into account.
The Judge then returned to the common law position, in respect of which he reached the same conclusion. He reasoned:
Although I am thus not precluded from taking your previous good character into account in determining sentence for your first two crimes, I need not, in conformity with previously existing principle, necessarily need to do so.
When your first and second crimes are viewed in isolation from the sexual activity which was to follow, I am satisfied that they were so serious and committed in such circumstances of aggravation, in the non-technical sense, particularly your use of your good character to assist you to commit them, that your previous good character is simply swept away to the extent that it cannot mitigate so as to reduce your sentence for your first two crimes.
In summary, the sentencing judge held that the appellant was entitled to no credit on account of his good character or, it can be inferred, his lack of previous convictions under either the common law or s 10(3) sentencing principles.
The sentencing judge’s approach to post s 10(3) offences
Counsel for the appellant did not challenge the trial judge’s finding that s 10(3)(ba) had been triggered. The only issue in respect of the third and fourth offences was whether the Judge went further than was required by s 10(3)(ba) and thus did not give the other related matters – primarily rehabilitation – the weight they warranted. In my view, the Judge did not make any such error. Immediately following his consideration of good character, he dealt with risk of re-offending and rehabilitation (in the paragraph of his sentencing remarks extracted earlier in these reasons). While his Honour did purport to address these matters “even without having any regard to [the appellant’s] good character and lack of convictions”, he found nonetheless that the appellant was “highly unlikely” to re-offend and that his prospects for rehabilitation were “plainly very good”. It is apparent from this conclusion that the sentencing judge did not allow his disregarding of the matters required by s 10(3)(ba) to infect, or narrow, his consideration of the appellant’s risk of re-offending or prospects for rehabilitation. Those matters fell to be, and were, determined in light of all of the relevant facts.
The sentencing judge’s approach to pre s 10(3) offences
In my view the sentencing judge did err, however, in affording the appellant’s good character and lack of previous convictions no (independent or stand alone) weight at all in respect to the offences committed before the introduction of s 10(3)(ba), ie in respect of offences 1 and 2.
As earlier explained, the approach was a less rigid one before the introduction of s 10(3)(ba). While the nature and circumstances of the offending (including the fact of, and extent to which, good character assisted in that offending) was plainly relevant, it would rarely, if ever, entirely eliminate the mitigatory effect of proven good character.
In Ryan v The Queen, the defendant’s offending was far greater than occurred here – both in terms of the number and overall duration of the offending, as well as the closeness of the connection between the defendant’s character and status and the offending. However, even on the facts of that case, the majority of the High Court held that the sentencing discretion miscarried in the House v The King sense by affording good character no weight.
I do not need to resolve the potential difference between the approaches of the majority and minority members of the Courts in Ryan v The Queen and R v Liddy because even if there may be some cases where the nature and circumstances of the offending are sufficient to eliminate entirely the defendant’s otherwise proven good character, this is not such a case. It was not reasonably open to the sentencing judge to reach that conclusion here.
Disposition of the appeal
It follows for the above reasons that a process error has been established in the sentencing judge’s approach. While the link between the appellant’s good character and his offending meant that it was appropriate to afford only relatively minor or modest weight to his otherwise good character and lack of previous convictions, I am not able to say this error had no material impact on the sentence imposed. Accordingly, it is appropriate that the sentencing discretion be exercised afresh.
While this error only directly affected the sentencing judge’s reasoning in relation to the first and second offences, as the trial Judge utilised s 18A of the Sentencing Act to impose a single sentence in respect of all four offences, it is appropriate that the discretion be exercised afresh in respect of all four offences.
Exercising the sentencing discretion afresh
In exercising the discretion afresh, I would approach the matter in a very similar way to the sentencing judge.
I have set out the circumstances of the offending. It was serious offending involving multiple counts over a couple of weeks. The appellant knew that what he was doing was contrary to the law yet chose to embark upon his offending, and to continue that offending until it was exposed. It involved a serious abuse of his position and the trust shown in him by the complainant (and her mother).
The appellant complained that the sentencing judge erred in placing undue weight on the appellant’s use of his status as a police officer in his interaction with the complainant. There is no need to address this ground of appeal directly given that I have already determined to exercise the sentencing discretion afresh. However, I do not think the sentencing judge did fall into error in this respect. It was relevant that the appellant was a police officer. Not only was this part of the foundation for his good character, but it also explained, or contributed to, the opportunity for his offending. It also brought an element of breach of trust to the offending, and explained why the appellant should have known (and, indeed, did know) that his conduct was wrong and unlawful.
On the other hand, it is also relevant that the appellant’s offending was confined to one victim, and did not extend over months or years. Nor did it involve conduct which could be described as grooming or otherwise being of a predatory nature. There is no suggestion the appellant has paedophilic tendencies. While these considerations do not, of course, excuse the offending, they do render the offending less serious than in those cases which have involved offending or offenders with these features.
It is relevant that the complainant was only two months short of 17 years of age (the age of consent) when the offending occurred. It is also relevant that the complainant was a willing participant in all of the sexual activity that occurred.
The impact of the offending on the victim was significant. It is apparent from her victim impact statement, as one would expect, that the impact has been significant and is ongoing.
Turning to the factors personal to the appellant, it is significant that he almost immediately showed, and has continued to show, shame, remorse and contrition in relation to his offending. This is reflected, and further evidenced, by his early admissions as to his conduct and pleas of guilty. The report from his psychologist indicates that he has come to understand the impact his offending had on his victim. He has paid a great price for his offending. He has been the subject of significant publicity. He has lost his employment and has and will suffer financially. He has damaged his reputation and his marriage, although his wife continues to support him.
For the reasons explained above, in respect of the first and second offences (but not the third and fourth offences, by reason of s 10(3)(ba) of the Sentencing Act), the appellant is entitled to some credit for his otherwise good character and lack of previous convictions. Before the offending he had an exemplary employment record, including over a decade in the police force. He presented a number of references which spoke to his good reputation and character, and to the offending being out of character. The offending has, given its connection to his good character and status as a police officer, reduced the weight that might ordinarily be attached to such matters. The appellant’s case is distinguishable from cases such as Ryan v The Queen and R v Liddy, where the offending in question involved a large number of incidents and victims over a number of years, and where the defendant’s character and position were positively deployed in the offending. In those cases the offending was such as to almost eliminate any weight that could be given to good character as a mitigating factor. Here there remains weight that can be given to the appellant’s good character and lack of previous convictions.

Further, as the sentencing judge concluded, there is very little risk of the appellant re-offending. He has very good prospects for rehabilitation. He has already taken some steps down that path.
Bearing all of the above matters in mind, I would impose a notional head sentence of three years six months imprisonment. Reduced by 30 per cent for his pleas of guilty, the actual term of imprisonment I would impose is two years six months.
In relation to the appellant’s non-parole period, given the greater weight that can be afforded at this stage of the sentencing process to factors personal to the appellant that I have outlined above,[25] it is my view that a non-parole period of 12 months is appropriate.
[25] R v Miller (2000) 76 SASR 151 at 160.
However, despite the significance of these factors personal to the appellant, the offending remains serious, and the need for general deterrence remains great. In the circumstances, I do not accept that there exists good reason to suspend the sentence I would impose. I would therefore decline to suspend that sentence.
Conclusion
I would grant permission to appeal, allow the appeal and set aside the sentence imposed by the sentencing judge. I would impose a head sentence of two years six months imprisonment. I would fix a non-parole period of 12 months, with the sentence and non-parole period to commence on 13 August 2015.