R v Kohlhagen - [2016] SASCFC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KOHLHAGEN
[2016] SASCFC 19
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Nicholson)
2 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence. The appellant was charged with the offences of aggravated making a child amenable to a sexual activity, aggravated indecent assault and unlawful sexual intercourse with a person under 14 years. He pleaded guilty to the offences in the District Court and, as such, was subject to a 20 per cent discount pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA). The Judge sentenced the appellant to a term of imprisonment of four years, eight months and 24 days, reduced from a head sentence of six years, with a non-parole period of two years, five months and 24 days, allowing credit of six days for time the appellant had spent in custody.
The appellant appealed against the sentence imposed by the Judge on a number of grounds. The first three grounds of appeal assert errors involving the appellant’s prospects of rehabilitation, the appellant’s remorse and insight into the offending, and the effect an immediate custodial sentence would have on the appellant’s treatment and rehabilitation. The final two grounds of appeal assert that the head sentence and non-parole period are manifestly excessive and the Judge erred in not suspending the sentence of imprisonment.
Held by Nicholson J (Peek J agreeing), allowing the appeal:
1. In all of the circumstances, the head sentence imposed by the Judge was manifestly excessive. It is unnecessary to consider the remainder of the appellant’s grounds of appeal (at [49], [73]-[74]).
2. The sentence of the District Court is set aside. The appellant is resentenced to a head sentence of four years and nine months imprisonment, reduced to three years and ten months imprisonment, with a non-parole period of 23 months. The head sentence and non-parole period are backdated to commence on 21 July 2015 (at [75]).
3. The seriousness of the offending and the need for general deterrence are such as to exclude good reason to suspend the sentence (at [76]).
Held per Blue J (dissenting):
1. The Judge did not err in his assessment concerning prospects of rehabilitation (at [18]).
2. The Judge did not err in his assessment concerning remorse (at [24]).
3. The Judge did not err concerning the effect of an immediate custodial sentence on the appellant’s treatment and rehabilitation (at [28]).
4. The head sentence imposed was not manifestly excessive (at [40]).
5. The Judge did not err in the exercise of his discretion not to suspend the sentence (at [42]).

R v KOHLHAGEN
[2016] SASCFC 19
Court of Criminal Appeal: Peek, Blue and Nicholson JJ
PEEK J:

I agree with the orders proposed by Nicholson J and with his reasons.
BLUE J:
This is an appeal against sentence.
The appellant, Daniel Peter Kohlhagen, was sentenced by a Judge of the District Court to a single term[1] of imprisonment for four years, eight months and 24 days, with a non-parole period of two years, five months and 24 days, for one count of aggravated making a child amenable to sexual activity,[2] one count of aggravated indecent assault[3] and one count of unlawful sexual intercourse with a person under 14 years.[4]
[1] Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).
[2] Section 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA).
[3] Section 56 of the Criminal Law Consolidation Act 1935 (SA).
[4] Section 49(1) of the Criminal Law Consolidation Act 1935 (SA).
The appellant appeals on three grounds alleging process errors and two grounds alleging outcome errors. The first three grounds allege errors by the Judge affecting his assessment of the appellant’s prospects of rehabilitation, the appellant’s remorse and insight and the effects of an immediate custodial sentence. The last two grounds are that the head sentence and non-parole period are manifestly excessive and the Judge erred in declining to suspend the sentence of imprisonment.[5]
[5] Permission to appeal is sought in respect of this last ground, permission having been refused by a single Judge.
The circumstances of the offending and the appellant’s personal circumstances are summarised in the reasons for judgment of Nicholson J.
Sentencing remarks
The Judge summarised the offending and the communications between the appellant and the victim over the week following the offending. The Judge summarised the victim impact statements of the victim’s mother and step-father and noted that the offending had had a devastating impact on the victim and her family.
The Judge summarised the report by Mr Ryan, a clinical psychologist, who reported that the appellant had attended three sessions with him in March and April 2015 that had addressed the appellant’s alcohol consumption problem. No other issues had been addressed, but Mr Ryan reported that the appellant planned to continue to see him after the court matter had resolved as he wanted to improve on problems he was facing in life beyond the court charges.
The Judge comprehensively summarised (extending over four pages of the sentencing remarks) the report by Mr Bell, a forensic psychologist, who reported that he saw the appellant in May 2015. He reported that the appellant told him that he perceived that his level of intoxication at the time was a significant facilitator for his not having exercised his adult responsibility for restraint and that, as a consequence of his intoxication, he had not perceived any red flag signals from the victim that would have alerted him to discontinue his actions. He reported that the appellant told him that he had experienced sexual abuse as a child but Mr Bell expressed the opinion that that there was only a limited, and not statistically strong, connection between that abuse and the risk of his perpetuating sexual abuse. Mr Bell reported that, leaving aside the disinhibiting effects of alcohol, the appellant told him that he did not have any clear understanding why he committed the offences. Mr Bell did not express his own opinion about the underlying causes for the appellant having committed the offences. Mr Bell suggested that the appellant would benefit from rehabilitation programs. For the purpose of matching intervention programs to level of risk of reoffending, Mr Bell expressed the opinion that the appellant would be considered to be in the low risk group for sexual re-offending.
The Judge referred to character references submitted on behalf of the appellant.
The Judge said that one troubling aspect of the reports by Mr Bell and Mr Ryan was that they provided little assistance in understanding why the appellant offended in the way that he did.
The Judge adopted a starting point of imprisonment for six years, which he reduced to four years and nine months to reflect his guilty pleas and by six days for time spent in custody. The Judge fixed a non-parole period of two years, five months and 24 days, which was also reduced by six days for time spent in custody.
The Judge referred to the appellant’s counsel’s submission that there was good reason to suspend the sentence of imprisonment and that he had very good prospects for rehabilitation and had demonstrated real remorse for his behaviour. The Judge reiterated that he found it difficult to be comfortable that the appellant had very good prospects for rehabilitation given the lack of understanding about the underlying cause for the offending. The Judge concluded that he did not consider that good reason existed to suspend the sentence of imprisonment.
Prospects of rehabilitation
The first ground of appeal is that the Judge “erred in finding that there was no explanation provided on behalf of the appellant for his offending, and in so finding placed insufficient weight on the forensic psychological opinion that the appellant was a low risk of re-offending and had good prospects of rehabilitation”.
As previously noted, the Judge summarised Mr Bell’s report in considerable detail. The Judge referred specifically to Mr Bell’s opinion that the appellant would be considered in the low risk group for sexual offending or re-offending generally. The Judge referred to Mr Bell’s assessment that, while alcohol was a facilitating factor, it was only partly explanatory for the events on the night of the offence. In the course of summarising Mr Bell’s report, the Judge referred amongst other things to Mr Bell’s statements that the appellant described himself as finding it “difficult to provide a context of understanding for his offending behaviour and therefore his responses to questions on this topic were more limited”; that he “continues to struggle to understand why he behaved in a manner contrary to his own belief system”; and that he “was unable to explain to me what he had thought or perceived to have encouraged him or given him permission to proceed with inappropriate sexual activity on that occasion. Therefore it is difficult to say with any certainty what he was thinking at that point”.
The Judge then said:
One troubling aspect of Mr Bell’s report for me, and the other psychological report for that matter, is that it provides little assistance in understanding why you offended in the way that you did that night in September last year, which night is now over 10 months ago.
Mr Bell’s opinion is that there is a limited, and not statistically strong, connection between your history of being a victim of abuse and your risk of perpetuating sexual abuse.
You perceive that your alcohol abuse on the night was a significant factor in your choice to cross the boundaries of appropriate behaviour. No-one else, with the exception of your victim, has referred to you abusing alcohol that night or to you apparently being affected by it. Your victim refers to your being drunk, but that seems more to me in the context of her trying to give you some comfort for what you did.
In any event it appears that you had abused alcohol for some years prior to this offending without it leading you to ‘cross boundaries of appropriate behaviour’, as it was put.
The psychological report dated 7 April 2015 refers to you appearing to be motivated to reduce your drinking and ‘making concerted efforts to have alcohol-free days’. Who can say what will happen if you are, in the future, put under stress, which apparently you were not under this night.
The first aspect of the complaint made on appeal is that the Judge “erred in finding that there was no explanation provided on behalf of the appellant for his offending”. The Judge did not make such a finding. To the contrary, as summarised above, the Judge referred extensively to Mr Bell’s report in which Mr Bell reported that the appellant told him that his intoxication was a significant facilitator for committing the offences. Mr Bell proceeded on the basis that, absent intoxication, the appellant would not have committed the offences. However, Mr Bell identified in his report that alcohol is only a disinhibiting factor and there must be underlying causes for the appellant’s conduct. In his sentencing remarks, the Judge expressed concern that those underlying causes had not been identified by anyone. There was no error in the Judge making this finding about lack of identification of underlying causes, which was inevitable given the content of the reports by Mr Bell and Mr Ryan.
The second aspect of the complaint made on appeal is that the Judge “placed insufficient weight on the forensic psychological opinion that he was a low risk of re-offending and had good prospects of rehabilitation”. Mr Bell’s assessment must be understood in the context that he was predicting whether the appellant would be regarded as eligible for a high risk or low risk intervention program. In any event, the Judge was not bound to accept Mr Bell’s assessment. The Judge retained a responsibility to make his own assessment of prospects of rehabilitation based on the material before him. Given the lack of identification of the underlying causes of the offending, the Judge was entitled to express concern about prospects of reoffending.
This ground of appeal is not made out.
Remorse
The third ground of appeal is that the Judge “erred in finding that the appellant did not fully appreciate the impact the offending had on the complainant and in so doing placed insufficient weight on the appellant’s remorse and insight into his offending”.
In his remarks on sentence, the Judge referred to the report by Mr Bell in which he reported that the appellant said that he was appalled at his behaviour, stating that as an adult it was his responsibility to curtail progression of the telephone text messages and content of their conversation to prevent it having sexualised content, and the appellant acknowledged that the sexual activity was inappropriate.
The Judge addressed the appellant’s counsel’s submission about remorse in the following terms:
Your counsel also submitted that through your comments to Mr Bell you had demonstrated real remorse for your behaviour. There is no doubt that there were numerous times that you said to Mr Bell that you could not understand why you had behaved in such an appalling way when you abhorred so strongly the idea that you would be the perpetrator of abuse on a child. Although it is not entirely clear, Mr Bell appears to be saying at one point in his report that you were distressed by your loss of contact with your victim’s parents who were formerly your best friends, and your loss of regular contact with your own son.
But what does not appear to me to come through from Mr Bell’s report as strongly as it might, is how sorry you may be for what you have caused to the life of a 13-year-old girl and to the lives of her mother and her stepfather, all of whom considered you a close and trusted family friend.
The first aspect of the complaint made on appeal that the Judge “erred in finding that the appellant did not fully appreciate the impact the offending had on the complainant” is unfounded. It was open to the Judge based on the content of Mr Bell’s report to form the view that the appellant might more strongly have expressed his sorrow for the effects of his offences on the lives of the victim and her parents. While Mr Bell reported that the appellant said that he felt appalled at his conduct, Mr Bell did not report any reference by the appellant to the effects his offending had on the victim or on her parents.
The second aspect of the complaint made on appeal is that the Judge “placed insufficient weight on the appellant’s remorse and insight into his offending”. There is no substance to this aspect given the failure of the appellant to make out the first aspect of the complaint.
This ground of appeal is not made out.
Effect of custodial sentence on treatment
The second ground of appeal is that the Judge “erred in not taking into consideration the evidence that an immediate custodial sentence would adversely interfere with the appellant’s treatment and rehabilitation”.
The Judge referred in his sentencing remarks to the sessions by the appellant with Mr Ryan addressing his alcohol consumption problem, the appellant’s plans to continue to see Mr Ryan to improve on problems he was facing in life beyond the current charges and to the appellant’s statements to Mr Bell that he was keen to continue attending for psychological sessions to achieve greater understanding of his behaviour. The Judge referred to Mr Bell’s report referring to the availability of the Department’s community corrections Sex Offender Treatment Program, whereas if the Department assessed him as low risk he would be unlikely to be put forward for the Department’s custodial based Sex Offender Treatment Program if he were immediately imprisoned.
The appellant’s complaint is that the Judge did not explicitly say that he had taken into account the differential in availability of the Sex Offender Treatment Program depending on whether a custodial sentence were imposed, and that it should therefore be inferred that the Judge did not take this into account. The Judge explicitly gave consideration to whether there was good reason to suspend the sentence of imprisonment. The Judge explicitly referred to the differential in availability of the Department’s programs. Counsel had made submissions that this was relevant to the question of suspension. Objectively there was no other reason for the Judge to mention it if it was not relevant to suspension. In the circumstances, it is evident that the Judge did take into account this differential in considering whether good reason existed to suspend the sentence of imprisonment.
This ground of appeal is not made out.
Manifestly excessive head sentence
The fourth ground of appeal is that “the head sentence and non-parole period are manifestly excessive having regard to the isolated nature of the offending and absence of a course of conduct combined with the appellant’s lack of antecedents, previous good character, good prospects of rehabilitation and low risk of re-offending”.
The non-parole period fixed by the Judge was just over 50% of the head sentence. The appellant does not complain about the ratio of the non-parole period to the head sentence, but contends that the head sentence was manifestly excessive and consequentially the non-parole period was manifestly excessive.
The nature and circumstances of the offending were very serious. Before the appellant entered the victim’s bedroom, he initiated a series of KIK communications which were sexually explicit, including asking her if she masturbated and referring to sex and orgasms. The victim’s responses were negative and discouraging and she attempted to change the subject to innocuous topics. The appellant concluded those communications by asking the victim for a hug. The appellant’s communications show that he was able to initiate and continue the communications in a sophisticated and articulate manner. There was no evidence that the appellant was inebriated at that point, the victim’s mother having said that he consumed two strong glasses of spirits. After the appellant entered the victim’s bedroom, he continued the conversation along the same lines as the KIK messages and the victim again attempted to change the subject to innocuous topics. The appellant’s plea of guilty to the first count of aggravated making a child amenable to sexual activity reflects his acceptance that his communications were intended to have that effect on the victim.
The appellant got into the victim’s bed and, while she was trying to go to sleep, he persisted in tickling her on her hips. She kept moving his hands away. The appellant repeatedly asked the victim if he could give her a massage and she repeatedly said no. She ultimately acquiesced but said that it was to be quick. The appellant persisted with a lengthy massage and proceeded beyond her back and shoulders to her buttocks. The victim then fell asleep. The victim awoke to find that the appellant was rubbing her breast and buttocks. This was the subject of the second count of aggravated indecent assault. The victim told the appellant that she wanted to go to sleep.

The appellant then repeatedly inserted his finger into the victim’s vagina. This was the subject of the third count of unlawful sexual intercourse with a person under 14 years.
While the appellant apologised to the victim over the next few days, it is apparent that he was concerned about the consequences of his conduct and told the victim that he would kill himself instead of going to jail.
The offending has had very serious consequences for the victim. She has experienced sleeplessness, nightmares, mood swings, crying outbursts, severe anxiety and depression. It has had an adverse effect on her schooling. She has lost the ability to trust. It has also had very serious consequences for the victim’s mother and stepfather. It has caused them feelings of guilt, anxiety and devastation and has had consequential adverse effects on their marriage and their relationship with their other children. It caused them to decide to leave the house in which they were living and in which the offending occurred.
The appellant refers to the fact that the offending was confined to a single night and was of limited duration. It is common ground that the offending is not of the nature considered by this Court in R v D.[6] A comparison with R v D and other cases involving repeated sexual offending over a sustained period is of little assistance and the starting point adopted by the Judge in the present case of imprisonment for six years is not in the range referred to in such cases.
[6] (1997) 69 SASR 413.
The appellant refers to his age, being 29 years old, the fact that he has no prior convictions, his previous good character, his excellent work history and Mr Bell’s assessment of his prospects of rehabilitation.
The nature and circumstances of the offending are such that general deterrence plays an important role in fashioning an appropriate sentence. Personal deterrence is also a factor for the reasons given above.
In all of the circumstances, while the head sentence is high, it cannot be said that it is manifestly excessive. No complaint is made as to the non-parole period independently of the complaint about the head sentence.
This ground of appeal is not made out.
Failure to suspend sentence of imprisonment
The fifth ground of appeal is that the Judge erred in declining to suspend the sentence for the reasons set out in ground 4.
The Judge did not err in concluding that there was not good reason to suspend the sentence of imprisonment. I would refuse permission to appeal on this ground.
Conclusion
I would dismiss the appeal.
NICHOLSON J:
Introduction
On 21 September 2015, a single Judge granted the appellant permission to appeal on four grounds against a sentence imposed in the District Court. Whilst permission to appeal on a fifth ground was refused that aspect of the application has been renewed before this Court.
The appellant pleaded guilty to the offences of: aggravated making a child amenable to sexual activity,[7] the maximum penalty for which is imprisonment for 12 years; aggravated indecent assault,[8] the maximum penalty for which is imprisonment for ten years; and unlawful sexual intercourse with a person under 14 years,[9] the maximum penalty for which is imprisonment for life. The first two offences were pleaded to in their aggravated form on the basis that the appellant committed each offence knowing that the victim of the offence was, at the time, under the age of 14 years. As a consequence of the timing of the pleas the appellant became entitled pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA) to a discount with respect to any prison term imposed of up to 20 per cent.
[7] Contrary to section 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA).
[8] Contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).
[9] Contrary to section 49(1) of the Criminal Law Consolidation Act 1935 (SA).
The Judge exercised the discretion available under section 18A of the Sentencing Act to impose the one penalty for all three offences. His Honour started with a term of imprisonment for six years which he reduced to four years and nine months (20.8 per cent) to reflect the guilty pleas.[10] His Honour fixed a non-parole period of two years and six months. The Judge then allowed the appellant credit of six days for time spent in custody following his arrest. This resulted in final head sentence for imprisonment of four years, eight months and 24 days with a non-parole period of two years, five months and 24 days, both to commence on the day of sentencing, 21 July 2015.
[10] Whilst there is no ground of appeal to this effect and the issue was not considered during argument, it remains my view that where the circumstances of a plea invoke a maximum percentage discount available in accordance with section 10C of the Sentencing Act, exceeding that maximum, even by a relatively immaterial amount, is not permitted, see R v Deng [2015] SASCFC 176 at [47], [51]-[53].
The appellant’s five grounds of appeal are as follows.
1.The Learned Sentencing Judge erred in finding there was no explanation provided on behalf of the applicant for his offending, and in so finding placed insufficient weight on the forensic psychological opinion that the applicant was a low risk of re-offending and had good prospects of rehabilitation.
2.The Learned Sentencing Judge erred in not taking into consideration the evidence that an immediate custodial sentence would adversely interfere with the applicant’s treatment and rehabilitation.
3.The Learned Sentencing Judge erred in finding that the applicant did not fully appreciate the impact the offending had on the complainant and in so doing placed insufficient weight on the applicant’s remorse and insight into his offending.
4.The head sentence and non-parole period are manifestly excessive having regard to the isolated nature of the offending and absence of a course of conduct combined with the applicant’s lack of antecedents, previous good character, good prospects of rehabilitation and low risk of re-offending.
5.The Learned Sentencing Judge erred in declining to suspend the sentence for the reasons set out above in [4]. (Permission still required)
The imposition of sentence calls for a discretionary judgment. As emphasised repeatedly in the authorities[11] an appeal against sentence is governed by the well known passage in House v The King.[12] Grounds 1 to 3 assert what are often referred to, by reference to the House v The King approach, as process errors and grounds 4 and 5 as outcome errors. Grounds 1 and 3, as drawn and argued, assert that insufficient weight was given to particular relevant considerations. To the extent that the appellant’s challenge is confined to an assessment of appropriate weight they would seem to fall foul of House v The King as interpreted by recent authority.[13]
[11] For example, R v Jongewaard [2009] SASC 346 at [40] (Doyle CJ).
[12] [1936] HCA 40; (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
[13] See, for example, Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32, R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144 at [46]-[47], [51], R v Kreutzer [2013] SASCFC 130; (2013) 118 SASR 211 at [8].
Nevertheless, it is not necessary for me to give further consideration to grounds 1-3 inclusive and 5. I would allow the appeal on the basis of ground 4 and, in particular, on the basis that the head sentence with a starting point of six years imprisonment was manifestly excessive in all the circumstances.
The circumstances of the offending
The background to the offending, the circumstances of the offending and the aftermath of the offending have been described in great detail in the Judge’s sentencing remarks. It is unnecessary to traverse that level of detail again.
The victim was 13 at the time of the offending and lived with her mother, her step-father and other children. The appellant who was 28 at the time of the offending was a very close friend of the victim’s step-father and had been so for at least ten years. On 13 September 2014, the appellant visited for a general catch up and to allow his son to play with the other children. The appellant had dinner with the family after which he remained and continued to socialise. At about 11pm the step-father went to bed and the appellant and the victim’s mother continued talking and drinking alcohol. The mother went to bed at about 1.30am and expected the appellant to do the same. On past visits when the appellant stayed the night, he slept in the lounge room.
The appellant was aware that the victim was still awake in her bedroom and was playing on her mobile telephone. After the mother went to bed, the appellant and the victim started texting messages to each other. The texting, certainly on the appellant’s side, was very sexually provocative and highly inappropriate. Ultimately, the appellant sent a message asking if the victim would come out of her bedroom and give him a hug. She replied that she could not be bothered but that the appellant could come and give her a hug. The appellant went into the bedroom and further discussion ensued about and along the lines of the sexualised messaging that had taken place. Whilst in the victim’s room the appellant continued to drink alcohol and offered the victim an alcoholic drink. The appellant asked the victim for permission to sleep in her room and when she acceded to that he obtained a blanket and a pillow from the lounge room. The appellant took off his outer pants and got into bed with the victim wearing his boxer shorts. The appellant tickled the victim and importuned her on a number of occasions to allow him to give her a massage. She was reluctant at first but finally agreed to this. The appellant’s conduct to this point forms the basis of the charged offence of aggravated making a child amenable to sexual activity.
The appellant gave the victim more than one massage although, in a practical sense, engaged in a course of conduct that involved sitting astride the victim’s thighs as she lay on her stomach while massaging shoulders, back and buttocks. The victim was relaxed during the massaging of shoulders and back but cringed and expressed reluctance during the massage of the buttocks. In time, the victim fell asleep. It is the massaging conduct that comprises the charged offence of aggravated indecent assault.
According to the victim, and not challenged by the appellant, she woke up at one stage with the appellant lying close behind and touching her. He was rubbing the victim’s breasts with one hand while, at the same time, moving one or two of his fingers in and out of the victim’s vagina. The appellant told the victim not to tell anyone because he did not want to go to gaol and then slept the rest of the night in the victim’s bed. The actions of digital penetration comprised the charged offence of unlawful sexual intercourse with a person under 14 years of age.
The appellant’s conduct that night was the first and only occasion that the appellant sexually assaulted the victim.
The appellant was discovered in the victim’s bed by her mother the next morning. The appellant offered an innocent reason for being there and the victim did not then complain about his conduct. Nevertheless, plainly the parents were very concerned.
The appellant left the house that morning but before doing so texted the victim and apologised for what had happened. He expressed the hope that she was “ok”. Over the next week or so the appellant exchanged a substantial number of text messages with the victim. Again, it is unnecessary to set out in particular detail the content of these messages. However, the tenor of the messages that came from the appellant was also one of apology and regretfulness. He indicated a wish to “still be friends and learn from mistakes”. The tenor of the messages was one of feeling sorry for himself and being anxious and frightened about the possibility of exposure. At one stage, the appellant indicated to the victim that he would kill himself instead of going to gaol. He asked the victim to try and keep it to herself and not to expose him. He told her that he was very disappointed in himself, that he was not drinking anymore because “I lose control too easy” and that he was worried for the victim, for himself and for the future of his son.
I have not attempted a complete summary of the exchanges but only to give a sense of their overall character. The appellant was sending complex and mixed messages. Whilst he expressed concern for the victim and was apologetic he was also attempting to emotionally manipulate the victim into not telling anybody about the incident. The appellant clearly was fearful that he would go to prison and as to what impact this might have on his young son.
The victim during the early period of this exchange of messages did her best to try and comfort the appellant. After a while, anger started to set in and the victim started acting out and expressing her anger towards other people. In time, she told her mother what happened and the police became involved.
The appellant had been a good friend to the victim’s step-father and, in that capacity, the victim and her parents had trusted him over a number of years. Both the victim and her parents suffered significantly as a result of the offending. The victim, in particular, struggled with anxiety, depression, nightmares, sleeplessness, lack of trust, mood swings, outbursts of crying and temper tantrums. The profound breach of trust reposed in the appellant by the mother and step-father has affected the family greatly. The step-father has been shocked and distressed as a result of the behaviour of the appellant, his “best close friend for over ten years”. The victim has needed counselling and the step-father and the victim’s mother have engaged in marriage counselling.
The Judge was correct to view the offending itself, considered in the context of the effect it has had on the victim and her family, as very serious.
The psychological evidence and the Judge’s approach
Very soon after pleading guilty in the District Court on 16 March 2015, the appellant attended three sessions with a clinical psychologist who undertook a psychological assessment and also provided some cognitive behavioural therapy dealing, in particular, with the appellant’s alcohol consumption problem. Shortly after that a report dated 18 May 2015 was prepared for sentencing purposes by a different clinical forensic psychologist, Mr John Bell. Mr Bell recorded a detailed account of the appellant’s family, educational, employment, relationship and health (including mental health) histories. The Judge devoted significant attention in his sentencing remarks to an analysis of this report and as to the inferences his Honour was prepared to draw particularly concerning the appellant’s rehabilitation prospects.
According to Mr Bell, based on the information reported to him by the appellant, the appellant experienced sexual abuse as a child and as a result found it difficult to trust people including women. The sexual abuse experienced by the appellant was of a very serious nature and occurred when the appellant was between eight and ten years of age. The appellant told Mr Bell that he found it difficult to provide a context of understanding for the offending behaviour. The appellant was not forthcoming in providing detail of the offending behaviour to Mr Bell. He preferred to acknowledge that the victim’s description of the events on the night was essentially correct. The appellant explained to Mr Bell that he was appalled at his behaviour and that he believed that his level of intoxication was a significant disinhibitor leading to a failure to exercise the sort of restraint that he, as an adult, should have exercised. According to Mr Bell, the appellant said that he continued to struggle to understand why he had behaved in a manner contrary to his own belief system. The appellant expressed a keenness to continue attending psychological sessions in order to achieve a greater understanding of his behaviour on the night of the offence.
According to the appellant, one of the consequences of his intoxication was that he had not perceived any “red flag” signals from the victim that would have alerted him to discontinue his actions due to her discomfort or her distaste. The Judge rightly pointed out in his remarks that the appellant should not have needed any red flag signals in order to refrain from engaging in such highly inappropriate and sexually provocative texting behaviour, from getting into bed with a 13 year old step-daughter of his best friend, and from engaging in the massaging activity and the unlawful sexual intercourse by way of digital penetration.
Mr Bell suggested possible explanations for the appellant’s behaviour on the night and as to what might have caused it. However, his opinions in this respect lacked certainty. The Judge was particularly troubled that both Mr Bell’s report and the other psychological report provided little assistance in understanding why the appellant offended in the way he did. The Judge was troubled by the fact that the appellant had abused alcohol for some years prior to the offending without leading to the appellant crossing boundaries of appropriate behaviour. The Judge was concerned that he had no satisfactory explanation either from the appellant or the psychologist before him as to why the appellant offended.
In the absence of arriving at such an understanding, the Judge expressed difficulty in being “comfortable” with the submissions that the appellant had good prospects for rehabilitation and that such offending was unlikely to recur.
Nevertheless, according to Mr Bell, as a result of his detailed analysis, the appellant was considered to be in the low risk group for sexual reoffending specifically and for reoffending generally. He gave cogent reasons for this conclusion. Mr Bell also expressed the opinion that the appellant’s description of being appalled and distressed by his actions had the “ring of truth” and that the appellant was a good candidate for rehabilitation. Mr Bell identified a number of matters in support of the conclusion that the appellant was motivated to engage in rehabilitation.
In my view, these conclusions of Mr Bell should be readily accepted, on the basis of his expertise and for the reasons he has given and, particularly, bearing in mind that the appellant was 28 at the time of committing the offences, that until that time he had no criminal record whatsoever, let alone of a sexual nature, and that the circumstances were such that there was no prolonged grooming in an effort to generate and maintain a clandestine medium to long-term sexual relationship. Rather, the offending was isolated and the fact that the appellant had engaged in the conduct was, in the cold light of the next day, plainly distressing to the appellant. The appellant realised immediately the next morning the gravity of what he had done and the potential effects for the victim, for himself and for his young son.
The prosecution and the Judge criticised the appellant and to a degree rightly so, for the self-serving and manipulative nature of his later message contact with the victim. It is said that this conduct reflected poorly on the appellant and was a contrary indicator of genuine contrition and concern for the victim. There would seem to be truth in this. However, of importance to the sentencing task is not so much whether the appellant behaved badly during the aftermath and more in self interest than in the victim’s interest, per se. Of primary significance is what this behaviour might say about his prospects for rehabilitation, which, as I have already mentioned, Mr Bell indicated as being good.
Manifest excess
I have already summarised the circumstances of and surrounding the offending and have characterised it as very serious. The protection of children is a primary consideration. As King CJ in R v Ahlburg[14] observed:
It is the purpose of the law prohibiting sexual intercourse with girls under the age of consent to protect young girls from advances of men, older men in particular, and to protect them from their own immature inclinations.
As a consequence, there is a requirement to ensure that paramount consideration is given to the need for both general and personal deterrence.[15] In this case, for the reasons briefly summarised above and set out in much greater detail in Mr Bell’s psychological report, personal deterrence, as a consideration, is not as significant as is general deterrence.
[14] [1994] SASC 4628 at [17].
[15] Section 10(2)(c) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
In determining the sentence for an offence, a court must give proper effect to the following...
(c) in the case of an offence involving the sexual exploitation of a child – the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence.

The question of whether or not a sentence, and in this case, the head sentence, is manifestly excessive is to be determined by asking whether on the facts, the sentence imposed was unreasonable or plainly unjust. In Markarian v The Queen[16] a plurality in the High Court characterised the enquiry in this way.
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
In R v Scarpantoni[17] this Court stated that, when deciding the question of manifest excess, an appellate court will:
[consider] a number of factors including the maximum penalty for the offence[s], the range of sentencing customarily observed for the type of offending, the seriousness of the offending and the personal circumstances of the offender.
[16] [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ) (footnotes omitted).
[17] [2013] SASCFC 120 at [81] (Kourakis CJ and Sulan J).
There is no doubt that the serious nature of the offending was such as to call for condign punishment. However, the following mitigatory factors which suggest scope for leniency, a low prospect of reoffending and good prospects of rehabilitation, must also be taken into account.
(i)The offending was comprised of one isolated, although extended, occurrence.
(ii)The appellant has no prior criminal record of any nature and testimonials provided to the Court indicated that the appellant was highly regarded as a person of good character by those who knew him well. Given the absence of a course of conduct, over time, involving grooming activity and repeated offending, the appellant’s prior good character as an indicator of his prospects for rehabilitation and his low-risk for reoffending must be accorded significant weight.
(iii)The abuse of alcohol on the night was a material contributor to the offending and the materials, including Mr Bell’s report, before the Court support the conclusion that the appellant has insight in this respect and is taking steps to overcome his alcohol problem.
(iv)The appellant did not seek to challenge but accepted the victim’s account of the events on the night in question. He demonstrated remorse and that he was appalled by his conduct. Mr Bell has characterised the appellant as at low risk of reoffending and as a good candidate for rehabilitation.
(v)The offending did not proceed beyond indecent touching and digital penetration.
(vi)The appellant had an excellent work history and was fully employed at the time of sentencing.
(vii)The appellant wished to continue with psychological counselling that had been interrupted by the imposition of the sentence.
In the circumstances of this case I am satisfied that a starting point of six years imprisonment is significantly too high and that as a consequence, the head sentence ordered after allowance for the pleas is unreasonable and plainly unjust. In my view, a starting point of four years and nine months imprisonment for all three offences is towards the upper end of the available range for this offending in all the circumstances.
As in most cases where the question of manifest excess or manifest inadequacy arises, this is not an area where a close analysis of other cases or sentencing decisions can be of any particular assistance. Nevertheless, I have reviewed a substantial number of sentencing decisions in this State for isolated offences of unlawful sexual intercourse perpetrated by an adult on a young teenager. No assistance is to be gained from such an exercise in establishing a benchmark or an array of comparable sentencing outcomes. I have not attempted to do this. Further, the appellant in this case also pleaded guilty to the offence of making a child amenable to sexual activity, although most offences of unlawful sexual intercourse, where there is a significant disparity in ages, will involve some form of such conduct. However, the consideration of other sentences does disclose that a starting point of four years and nine months is not to be considered as particularly lenient.
The appellant is entitled to a discount of up to 20 per cent on account of his pleas of guilty. I would therefore reduce the head sentence I would impose from four years and nine months to three years and ten months. I would set a non-parole period of 23 months.
However, like the Judge, and notwithstanding the appellant’s personal circumstances and good prospects for rehabilitation, I take the view that the seriousness of the offending and the need for general deterrence are such as to exclude good reason to suspend the prison sentence. I would backdate the head sentence and the non-parole period to commence on the day the appellant was taken into custody, that is, 21 July 2015.
I would order that the appeal be allowed, the District Court sentence be set aside and the appellant be resentenced as indicated.