R v Lian

[2023] SASCA 122

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v LIAN

[2023] SASCA 122

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)

10 November 2023

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

Crown appeal against sentence.

The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child.  From a starting point of 14 months, the sentencing Judge imposed a term of imprisonment of one year and 18 days with a non-parole period of five months.

The Director of Public Prosecutions (SA) sought permission to appeal on the following grounds:

1.The Judge erred in reducing the sentence which would have otherwise been appropriate because of the risk that the respondent would be targeted by homosexual paedophiles.

2.Further or in the alternative to ground 1, the Judge erred in taking into account the opinion of Mr Balfour subject of ground 1 where that aspect of his evidence went beyond the bounds of his expertise.

3.The Judge erred in taking into account the risk of the respondent’s deportation in circumstances where the manifestation of that risk was dependent on the future exercise of a Ministerial discretion.

4.The Judge erred in finding that in the circumstances of this case imprisonment would impair the prospects of Mr Lian’s rehabilitation.

5.The sentence imposed was manifestly inadequate.

Held per Kourakis CJ (Lovell and Doyle JJA agreeing), granting permission to appeal and allowing the appeal:

1.The appellant has established the errors complained of in grounds 1, 2, 4 and 5.

2.The third ground is not made out.

3.The sentence is manifestly inadequate.

4.The sentence imposed in the District Court is set aside and the respondent is resentenced to five years and six months imprisonment reduced on account of his guilty plea to five years, with a non-parole period of two years and six months.

Criminal Law (Sentencing) Act 1988 (SA); Migration Act 1958 (Cth) ss 195A, 501(3A); Sentencing Act 2017 (SA) ss 12, 71, 96, 68; Criminal Procedure Act 1921 (SA) s 157, referred to.
Barry v Western Australia [2012] WASCA 175; Clinton v R [2009] NSWCCA 276; Arnold v Samuels (1972) 3 SASR 585; Geddes v The Queen [2012] NSWCCA 94; R v McGaffin (2010) 206 A Crim R 188; AB v The Queen (1999) 198 CLR 111; Milenkovski v Western Australia (2014) 238 A Crim R 535; R v Davies (1978) 68 Cr App R 319; House v The King (1936) 55 CLR 499; New South Wales v Bujdoso (2005) 227 CLR 1; R v D (1997) 69 SASR 413; R v Cartwright (1989) 17 NSWLR 243; Mooney v Western Australia [2007] WASCA 54; R v Dyett [2023] SASCA 41; R v Friesen [2020] 1 S.C.R. 424; R v Kelly [2023] SASCA 22; R v Laws (No 2) (2000) 116 A Crim R 70; R v Osenkowski (1982) 30 SASR 212; R v Harkin (2011) 109 SASR 334; R v Males [2007] VSCA 302; R v Mostyn (2004) 145 A Crim R 304; R v Partridge (2008) 102 SASR 233; Richardson v R [2021] NSWCCA 304; R v Weaver (1973) 6 SASR 265; Western Australia v Richards (2008) 37 WAR 229; R v Liddy (No 2) (2002) 84 SASR 231; R v Williams [2018] SASCFC 14; R v Smith (1987) 44 SASR 587; Warner v The King [2022] SASCA 142; The Queen v Smith (1975) 12 SASR 8; York v The Queen (2005) 225 CLR 466; R v Bahrami (2020) 137 SASR 327; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; Ex parte Herman; Re Mathieson (No 1) [1961] NSWR 1139; Wong v The Queen (2001) 207 CLR 584 ; Rendic v The Queen (2021) 138 SASR 214; Muldrock v The Queen (2011) 244 CLR 120 ; R v Stevens [2009] VSCA 81; R v Monks (2019) 133 SASR 182; The Queen v Constant (2016) 126 SASR 1; Markovic v The Queen (2010) 30 VR 589; Kroni v The Queen (2021) 138 SASR 37; Zahab v R [2021] NSWCCA 7; R v Perez-Vargas (1986) 8 NSWLR 559; Western Australia v O’Kane [2011] WASCA 24; R v Rostom [1996] 2 VR 97; R v ZMN (2002) 4 VR 537; Adams v Western Australia (2014) 245 A Crim R 351; R v Burchell (1987) 34 A Crim R 148; R v Brady (2005) 92 SASR 135; R v Bessim [2016] VSC 537; R v Fattal [2011] VSC 681; R v Totten [2003] NSWCCA 207; Houghton v Western Australia (2006) 163 A Crim R 226; R v AB (No 2) (2000) 117 A Crim R 473; Al Maouie v R [2022] NSWCCA 30; R v Gooley (1996) 66 SASR 380; R v Priestley (2002) 137 A Crim R 289, considered.

R v LIAN
[2023] SASCA 122

Court of Appeal - Criminal:  Kourakis CJ, Lovell and Doyle JJA

1. KOURAKIS CJ:     This is an application by the Director of Public Prosecutions (the Director) for permission to appeal against the sentence of one year and 18 days, with a non-parole period of five months, imposed on the respondent, Thian Ro Lian, on his conviction of the offence of maintaining an unlawful sexual relationship with a child.  The maximum penalty for the offence is life imprisonment.

2. The unlawful sexual relationship persisted from 1 July 2019 until 10 September 2020.  It comprised about five or six occasions of penile-vaginal sexual intercourse.  The victim of the offence, RM, was 14 when the unlawful relationship commenced and 15 years of age when it came to an end.  The respondent turned 24 in the course of the relationship. 

3. Both the respondent and RM are members of the ethnic Chin community who have settled in Adelaide.  The Chin people are a persecuted Christian minority in Myanmar.  They have been accepted in Australia, and many other countries around the world, as refugees genuinely fearing persecution. 

4. The Director appeals on the following grounds:

   1The Judge erred in taking into account an irrelevant consideration, namely the opinion of Mr Balfour that whilst in custody the respondent would be targeted by homosexual paedophiles.

   2Further or in the alternative to ground 1, the Judge erred in taking into account the opinion of Mr Balfour subject of ground 1 where that aspect of his evidence went beyond the bounds of his expertise.

   3The Judge erred in taking into account the risk of the respondent’s deportation in circumstances where the manifestation of that risk was dependent on the future exercise of a Ministerial discretion.

   4The Judge erred in finding that in the circumstances of this case the prospect of a custodial sentence for this respondent was a basis to extend leniency as it would impair his prospects of rehabilitation.

   5The sentence imposed was manifestly inadequate.

5. All the grounds of appeal, save for ground 3, are made out.  Grounds 1, and 4 allege errors of sentencing principle which are of general application and public importance.  The sentence is so egregiously inadequate and lacking in any reasoned foundation that it can only be described as idiosyncratic.

6. I would therefore grant permission to appeal, allow the appeal and set aside the sentence.  I would re-sentence the respondent to imprisonment for five years.  I would fix a non-parole period of two years and six months.

   The offending

7. The respondent and RM met in mid-2019 through a Church group.  Within a short time, and certainly before August 2019, RM and the respondent joined some friends at the Salisbury Train Station.  From there, the respondent drove RM to a nearby park where they drank alcohol and kissed.  Whilst sitting on play equipment, the respondent asked RM to have sex with him. 

8. The sentencing Judge’s remarks record only that the respondent and RM had sexual intercourse in a unisex toilet at the playground and that he then drove her to the Salisbury train station from where she caught a bus home.  However, the circumstances of that occasion warrant a little more elaboration.  When the respondent first asked RM to have sex with him she declined and told the respondent she had not had sex before.  The respondent reassured her that it would be ‘okay’.  Sexual intercourse took place with the respondent sitting on the toilet and pulling RM onto him after she had removed her pants.  During intercourse, RM told the respondent that she did not want to go on with it, but the respondent urged her to do so.  The intercourse continued causing RM to bleed. 

9. In August or September, RM skipped school and went with the respondent to a friend’s house where they all smoked cannabis.  RM and the respondent were left alone in the house and they had sexual intercourse.  About four weeks later, a blood test showed that RM was pregnant.  Her pregnancy was reported to police but no charges were laid.  The families of RM and the respondent decided that RM should have the child and that she and the respondent would live together and eventually marry when RM had attained the legal capacity to do so.  The respondent and RM had sexual intercourse on another three or four occasions thereafter at the home of one or other of their parents. 

10. RM gave birth to a daughter on 11 June 2020.  DNA testing confirmed that the respondent was the father. 

11. Just three months later, the respondent and RM separated after an argument in which RM alleges (but the respondent denies) that the respondent pulled her hair and punched her to the face while she was holding her daughter.  The following day RM spoke to a social worker and moved into a residential home for young mothers.  Since that time, RM has had no contact with the respondent and very little contact with her parents who were unhappy that she had cooperated with the police in the prosecution of RM.  In her victim impact statement, RM reported having difficulty with sleeping and that she suffered from intrusive, repetitive and upsetting recollections of sexual intercourse with the respondent.

12. It was accepted by the sentencing Judge that on the first occasion of sexual intercourse, the respondent thought that RM was 17 but later learned that she was only 14 years of age.  At that time, he was unaware of the legal age of consent in Australia.  The sentencing Judge conducted her own research and discovered that the age of consent in Myanmar is 14.  The respondent was as ignorant of the age of consent in Myanmar as he was of the law in that respect in Australia. 

    The respondent’s personal circumstances

13. The respondent was born on 2 February 1996.  He was 27 years of age when sentenced.  He has no criminal history. 

14. The respondent and his family fled Myanmar when he was 12 and took refuge in India.  In 2018, when aged 22, he moved to Australia where he was granted a Global Special Humanitarian Visa. 

15. He has only very poor English.  He falls within the low-average range of intellectual functioning but does not suffer from a psychiatric or personality disorder.  The respondent looks much younger than his chronological age; his appearance is that of an older teenager.  He is likely to be held in protective custody.  A psychologist, Mr Balfour, opined that by reason of the respondent’s appearance, poor English and low intellectual functioning he was vulnerable to predatory sexual attacks whilst in prison. 

16. It was accepted for the purposes of the sentencing that sexual assaults are not infrequently committed in prison and that persons sexually assaulted in prison often suffer long term post-traumatic stress disorder.  Mr Balfour noted that the respondent is not physically equipped by reason of his stature to stave off sexual assaults made against him.  Mr Balfour has treated, or seen, prisoners who have been sexually assaulted whilst in protective custody.  He suggested that prisoners undergoing indefinite sentences, by reason of their inability to control their sexual urges, who are also detained in protective custody, may be more likely to sexually assault other protectors because if they were ever convicted any sentence imposed would be served concurrently with their indefinite detention.

17. Mr Balfour’s opinion may be doubted for several reasons.  First, if reported, incidents of such offending are likely to cruel any prospect that such prisoners might have had of release on licence.  Secondly, the paedophile inclination of most offenders detained indefinitely is towards adolescent or early teenage children.  Thirdly, the reports provided by the Department for Correctional Services disclosed that sexual offending, by prisoners against prisoners, may sometimes occur in any part or division of a prison. 

18. Be that as it may, an assessment of the probability that a particular prisoner will be sexually assaulted by a particular class of prisoners whilst in custody is, in its very nature, a highly speculative task, because it necessarily entails an attempt to predict the criminal behaviour of unknown individuals.  It is not a generally accepted area of expertise.  It is a sphere of prognostication in which the Courts will generally not engage.  At most, Dr Balfour could do no more than to compare the characteristics of known victims of sexual assault with the characteristics of Mr Lian.

19. The respondent has no family in Myanmar and is fearful of being returned there.  The following expert legal opinion of a specialist immigration solicitor was put before the Judge:

    1.The respondent would be an Australian permanent resident by the time he was sentenced. 

    2.By reason of his conviction of a sexual offence involving a child, or if he were sentenced to imprisonment for 12 months or more, his visa and his permanent residence status must be cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth).

    3.In that event, the respondent would become an unlawful non-citizen who must be detained in immigration detention unless serving a sentence of imprisonment in which event a visa allowing him to remain in Australia until the completion of his sentence would be granted. 

    4.The mandatory statutory cancellation may be revoked by the exercise of a Ministerial discretion. 

    5.In the absence of the Ministerial revocation of the statutory visa cancellation, the respondent is not eligible for pre-release home detention and would be placed in immigration detention on any release on parole most probably for a significant period of time. 

    6.If the Minister declined to revoke the visa cancellation, the respondent would be removed from Australia, unless it was determined that he fell within Australia’s protection obligations.  In that event, or if he could not otherwise be removed from Australia, he faced prolonged or indefinite detention.

    7.Whether the respondent would be found to fall within Australia’s protection obligations was speculative. Even if found to fall within the protection obligations he would remain in immigration detention unless and until the Minister personally exercised a power pursuant to s 195A of the Migration Act 1958 to allow his release into the community. 

    Ground 1 – Hardship in prison

20. The Judge mitigated the sentence that would otherwise have been imposed on Mr Lian because of the real risk that Mr Lian would be sexually assaulted in prison:

    Whilst it is a matter for the prison authorities to make the necessary arrangements to ensure that you are protected whilst in custody, the information before me reveals that the prison authorities have frankly accepted that they have not been able to protect all prisoners from sexual assaults whilst in custody, including in protective custody.

    I accept the opinion of Mr Balfour that you will be a vulnerable prisoner for the reasons he has identified.  Accordingly, yours is a case where I should take into account the hardship that you may suffer if incarcerated.  It would be contrary to the evidence before me to proceed on the basis that the risk of you being sexually assaulted whilst in custody is a theoretical and not a real one. 

    Imprisonment is intended to serve a punitive and rehabilitative purpose.  It is punitive because it is a deprivation of liberty and a removal of an offender from society and the imposition upon that person of the strictures and discipline of the prison environment.  Imprisonment also gives effect to the principle of denunciation.  …  Imprisonment is not intended to include punishment by way of the perpetration of crimes, including sexual crimes, upon prisoners.  The prison authorities have a duty and a responsibility to protect prisoners from harm.

    However, where the evidence before a sentencing court reveals that imprisonment involves the real risk of the infliction of sexual violence, and a risk that the authorities are unable to effectively guard against, it would be an affront to ignore such a matter on sentence.  In such a situation, quoting parrot-like the mantra that the protection of prisoners from such assaults is the responsibility of the prison authorities would be an abdication of the responsibility of the sentencing Judge to take into account circumstances personal to an accused and to act according to good conscience.  In the administration of justice, a Judge should not turn a blind eye to evidence placed before him or her of the realities of prison life and the risks to a vulnerable prisoner.

    …

    Further, you will be placed in protective custody in the company of other convicted sex offenders.  It is acknowledged by the prison authorities that sexual assaults do occur in prison.  I accept Mr Balfour’s assessment of your youthful boyish appearance and slight build and a potential for you to be targeted by sex offenders in the same prison as you who have been declared unwilling to control or incapable of controlling their sexual instincts should you be housed in the same unit as such offenders.  Given the acknowledgement by prison authorities that sexual assaults occur in prison the risk of this happening, as I have said, is not a theoretical one.

    (Emphasis added)

21. As can be seen, the Judge’s concern was not the additional burden of the regime of protective detention on Mr Lian, or his level of anxiety about the risk of assault.  No material supporting either of those considerations was put before the Judge by Mr Lian who carried the onus of proving the factual foundation for them.[1]  Nonetheless, it is appropriate to first consider the authorities on the way in which the additional hardship of protective detention may be taken into account before dealing directly with the proper approach to the question of risk of harm while in prison.

    [1]     R v Mostyn (2004) 145 A Crim R 304; Geddes v The Queen [2012] NSWCCA 94 at [44].

22. In R v Partridge,[2] the appellant appealed against the length of the sentence imposed for the criminal neglect of a child on the ground, amongst others, that the Judge had declined to reduce the sentence on account of the risk that he would be detained in protective custody to safeguard him from assaults by other prisoners.  The Full Court of this Court identified what it described as a special category of cases in which a sentencing court may have regard to the hardship that a prisoner may suffer if isolated, within a prison, for his or her own protection, after providing information to law enforcement authorities.  It was so described because it was an exception to the general rule that sentencing courts do not have regard to the peculiar hardships which a particular prisoner may have to endure.  In practice, provision for the hardship of informers is usually encompassed in the overall reduction of what would, otherwise, be a proper sentence for their cooperation with the authorities.  The reduction in sentence is given primarily for public policy purposes to encourage offenders to facilitate the administration of justice.  The Court also recognised a second exception for that category of case in which the offender will suffer substantially greater hardship by reason of the exacerbation of his or her physiological or psychological infirmities caused by the inherent elements of the prison regime.

    [2] (2008) 102 SASR 233.

1. Some authorities have also exempted from the general rule prisoners who are detained in protective custody for other reasons, and those prisoners who have endured lockdown regimes.[3]  In R v Males,[4] a question arose as to whether protective custody necessitated by the prisoner’s own conduct in prison was mitigatory, but the issue was not resolved. 

   [3]     DPP (Vic) v Faure (2005) 12 VR 115 Faure suffered from very poor health and the judgments do not disclose whether the lockdowns were prison wide or limited to divisions in which Faure was held. A prosecution appeal was dismissed in part by reason of Faure’s ill health and the lockdown; Tognolini v The Queen [2012] VSCA 311 The appellant was a sexual offender who was associated with an outlaw motorcycle gang. The lockdown were a feature of his protective custody. The extremely onerous conditions of his imprisonment were taken to mitigate sentence.

   [4] [2007] VSCA 302.

2. In Mooney v Western Australia,[5] the Court of Appeal held that the sentencing Judge was entitled to take into account in mitigation of sentence, the circumstance that the offender, who had been convicted of aggravated armed robbery, would remain a high security prisoner throughout his sentence because he was to be deported on completion of his sentence.

   [5] [2007] WASCA 54.

3. In R v Liddy (No 2),[6] the Full Court of this Court recognised that the detention of a former Magistrate in protective custody in order to guard against violence by other prisoners who were outraged by the abhorrent nature of his sexual offending and/or simply because he was a former Magistrate, may not be mitigatory.  In that case, Mullighan J said:[7]

   [6] (2002) 84 SASR 231.

   [7] (2002) 84 SASR 231 at [117].

   The Court of Criminal Appeal of New South Wales reconsidered the sentence in R v AB (No 2) (2000) 117 A Crim R 473. Barr J, with whom Spigelman CJ agreed, noted the danger that the offender would face in prison, that he would have to be kept away from the ordinary prison population and that his movements would be restricted. He acknowledged that the offender is entitled to additional consideration because he will find his sentence harder to serve than would otherwise be the case: at 495. He included that consideration along with the consideration for other matters such as the plea of guilty and the attitude to extradition in the 25 per cent discount which he allowed. He did not specify what proportion of the discount he applied for the hardship ground. O’Keefe J, who was in the minority, referred to cases where sentences were reduced for informers or others who had cooperated with the authorities and went on to say (at 479):

   “In the light of these decisions the appellant is entitled, in addition to other discounts that may be applicable and appropriate, to a further discount on the basis of his cooperation with the authorities in revealing offences which would not otherwise have come to notice and because of the circumstances of his incarceration.  As Kirby J indicated, this last-mentioned matter is one which might not have been given as much weight as it deserved, suggesting that of itself it calls for some real and measurable weight to be given to it.”

   And later (at 483):

   “There is then the further factor identified by Kirby J and dealt with both in the English and Australian cases, namely, the character of the incarceration of the appellant because of the problems he is likely to encounter within the prison system.  Whether the prisoner be an informer, or a sexual offender against young children, is not to the point.  The end situation is the same for each category.  Each category of prisoner requires special circumstances of imprisonment.  The offenders have to be isolated, kept in circumstances of virtual solitary confinement. If the offenders are not so kept (and perhaps even if they are) they will be subjected to threats against their lives, with consequent fear that such threats will be implemented.  That fear will not of necessity be removed entirely by special circumstances of imprisonment.  This is a factor for which, in accordance with the authorities referred to above and the reasons of the majority of the High Court which this Court is directed to apply, an additional discount should be made.”

   I regret that I am unable to accept the proposition that the reason for the harsh conditions in custody is not to the point.  Informers and others who cooperate with the police usually provide benefits to the community in that offenders may be brought to justice and that is often, although not always, cogent evidence of remorse and contrition.  However, there are no such benefits to society in the circumstances of cases such as the present case.

4. In Liddy Gray J observed:[8]

   Making an allowance for an unduly harsh prison regime creates considerable difficulty. Such an approach may lead to a court participating in both law enforcement and the administration of prisons. The latter is traditionally a matter for a different arm of government. A consideration of the doctrine of the separation of powers suggests that involvement of this kind by the courts is inappropriate.

   [8] (2002) 84 SASR 231 at [207].

5. Gray J did not go so far as to hold that the hardship suffered by the appellant could have no mitigatory effect saying only that it was much less than in the case of an informer or a prisoner who was substantially disabled by a medical condition.

6. Gray J observed that prisoners in protective custody can not expect to receive privileges enjoyed by other prisoners.[9]  Put in another way the executive government cannot be expected to build and manage prisons in which all prisoners can enjoy the same privileges irrespective of the challenges in maintaining appropriate security.  It is difficult to see a principled foundation on which sentencing courts could generally reduce sentences which would otherwise be appropriate because the executive government does not operate prisons which both maintain the required levels of security and provide the same privileges to all prisoners.

   [9] (2002) 84 SASR 231 at [197].

7. Williams J held that a paedophile is not entitled to a reduction because of the attitude of other prisoners to his crime, but that there may be ‘an extreme point’ where hardship will attract some discount.[10]  His Honour also observed that the appellant could expect no reduction insofar as protection was necessary, he was formerly a Magistrate because he abused that office to create the opportunity to commit the offences.

   [10] (2002) 84 SASR 231 at [146].

8. I make this further observation.  It is an important sentencing purpose to isolate an offender from the community for a period of time in order to protect the community from re-offending.  However, if the exception from the general rule identified in Partridge is extended to prisoners in protective custody because of the nature of their crime, it would seem to follow that the more abhorrent the crime the greater will be the necessary protective measures and therefore the hardship of imprisonment.  It is an unacceptable paradox arising from such an extension that the more dangerous perpetrators of such crimes would receive proportionately greater reductions in their sentences.

9. In AB v The Queen, Kirby J observed:[11]

   [I]t is well recognised in England and in Australia that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison.

   (Footnote omitted)

   [11] (1999) 198 CLR 111.

10. Those remarks were referred to with approval in Milenkovski vWestern Australia.[12]  However, an examination of the authorities referred to by Kirby J shows that the conversion is not evidence based.  In R v Davies[13] the English Court of Appeal observed that we ‘are told … it is perfectly good sense’ that every year in protection custody is the equivalent to some eighteen months or two years a happier atmosphere.  The nature of the conditions of custody of the informer in that case were solitary confinement.  What is meant by happier conditions is not revealed, nor is the matrix by which the conversion rate is calculated.

    [12] (2014) 238 A Crim R 535 at [109].

    [13]   R v Davies (1978) 68 Cr App R 319.

11. The decision in R v Davies was referred to in R v Cartwright,[14] on an appeal against sentence imposed by a drug trafficker who had assisted police, in which Hunt and Badgery-Parker JJ observed:

    In R v Davies (at 322) the English Court of Appeal suggested that every year which the appellant was to serve his sentence under conditions of solitary confinement (described as being ‘intense severity’) was the equivalent of eighteen months to two years under normal discipline in gaol. That gives some idea of the discomforts involved. Complaint is made in the present case that the judge, by describing this factor as one which ‘may’ be taken into account to a ‘lesser’ extent, erroneously downgraded the weight to be given to it and that he wrongly assumed a discretion as to whether he should give it any weight at all. The use of the adjective ‘lesser’ was perhaps unfortunate and there is no doubt that this is a factor which must be taken into account, but there is also no doubt that the judge did in fact take it into account in the present case. Reference had been made in the evidence of police officers to the applicant’s incarceration in a segregation unit for his own protection, and the judge adopted as his approach a statement from the judgment of Burt CJ in R v Hayes that this factor was not to be overlooked.  As to whether sufficient weight was given by the judge to this factor is a question to which we will return.

    [14]   R v Cartwright (1989) 17 NSWLR 243 at 255.

12. It is, with respect, unhelpful to venture a universal conversion rate when the conditions of protective custody regimes may vary as greatly as the reasons which prompt prison authorities to accommodate a prisoner in protective custody.  The adoption of a universal formula was deprecated by the Court of Appeal of New South Wales in Clinton v R.[15]

    [15] [2009] NSWCCA 276 at [20].

13. The seminal authority on how the risk of physical violence in prison may be taken into account in sentencing an offender is York v The Queen.[16]  It is necessary to carefully identify the ratio of the Court’s decision in York, because it appears to me that subsequent decisions have, with respect, mistakenly taken some widely expressed observations made by McHugh J to constitute the essential and dispositive reasoning of the Court.

    [16] (2005) 225 CLR 466.

14. In York, the High Court considered the weight which could be accorded to the risk that a police informer would be killed or seriously harmed if imprisoned in the context of a prosecution appeal on the ground that a suspended sentence of imprisonment was manifestly inadequate.  Ms York was sentenced to a period of five years imprisonment, suspended, on her convictions on one count of trafficking in a dangerous drug and several other related drug offences.  The sentencing Judge was informed by a senior police officer that Ms York had given substantial assistance in the prosecution of a major drug dealer for an execution-style murder, even though serious threats had been made against her.  The sentencing Judge was informed that threats had, and were likely to continue, to be made against Ms York and found that there was a very high risk of retributive violence against Ms York and, indeed, that there was a very real danger that she would be killed, if she were to be imprisoned.  The Judge’s finding was based on evidence that the drug dealer against whom she had informed had contacted his associates in the Brisbane Women’s Correctional Centre and had encouraged them to inflict serious harm on Ms York.  The Judge sentenced Ms York to five years imprisonment, after commencing with a notional sentence of 10 to 12 years, having regard to Ms York’s cooperation and her early plea of guilty and her personal factors, but wholly suspended that term of imprisonment.

15. The Attorney-General appealed against the sentence on the sole ground that it was manifestly inadequate.  The Court of Appeal adjourned the appeal in order to obtain further evidence in the hope of quantifying the risk to Ms York in prison.  A majority of the Court of Appeal allowed the Attorney’s appeal on the ground that it was manifestly inadequate, and sentenced Ms York to the same head sentence of five years imprisonment, but ordered that it be only partially suspended after she had served two years.  Ms York appealed to the High Court.  On her appeal, the Attorney-General accepted that the decision of the Court of Appeal could only stand if the Attorney-General made good the ground that the sentence first imposed was manifestly inadequate. 

16. The High Court unanimously held that the Court of Appeal erred in finding that the sentence was manifestly excessive and ordered the dismissal of the appeal brought against the sentence imposed by the sentencing Judge.  The Court also unanimously deprecated the attempt to obtain evidential material which might quantify the risk to the safety of Ms York.

17. It is necessary to observe at the outset that the ratio of the Court’s decision is necessarily confined by two significant elements.  First, the case fell within the well‑established category of a police informer.  Secondly, the question was whether the suspension, not the length, of imprisonment, rendered the sentence manifestly inadequate.

18. Gleeson CJ observed that it is ‘common sentencing practice’ to extend, sometimes substantial, leniency to offenders who have assisted the police by taking into account any threat to the offender’s safety, the conditions under which the offender will have to serve the sentence in order to reduce that risk, and the steps that would need to be taken to protect the offender when released.

19. Gleeson CJ succinctly observed that it is ‘one thing for a court to hear evidence of the circumstances in which a person will serve a term of imprisonment’, but that it is ‘another thing to set out to investigate the executive government’s capacity to discharge its obligations of taking proper care of people in its custody’.[17]  Gleeson CJ expressed the view that any enquiry into the prospects of success of a conspiracy to cause harm in prison ‘is, in most cases, unlikely to lead to a clear conclusion’.[18]  His Honour continued:[19]

    For some offenders, prisons are dangerous places.  It is the responsibility of the executive branch of government, in whose custody prisoners are placed, to take reasonable steps to minimise the danger.  In dealing with questions of sentence, a court may need to know of any special circumstances of confinement that will be involved.  But it is difficult for a court to measure the prospects of success of a criminal enterprise.

    (Emphasis added)

    [17] (2005) 225 CLR 466 at [5].

    [18] (2005) 225 CLR 466 at [5].

    [19] (2005) 225 CLR 466 at [5].

20. Gleeson CJ allowed the appeal because he was not persuaded that in all of the circumstances, including the grave risk to Ms York if imprisoned, the suspended sentence was manifestly inadequate. 

21. It is convenient to address at this point why it appears to me to be significant that the issue in York was whether the suspension, and not the term of the sentence, rendered it manifestly inadequate.  In cases in which the question is to suspend a sentence of imprisonment, there is no conceptual difficulty in having regard to the risks of harm to the offender if he or she is imprisoned for at least two reasons.  First, no precision in quantification of the risk that other prisoners will commit offences of violence is required.  The avoidance of any risk of harm in prison may sufficiently tip the scale towards suspension, if it is otherwise appropriate, to exercise the discretion favourably.  Secondly, and relatedly, there can be no complaint that the sentencing court is influenced by its own assessment of the adequacy of the executive’s management of its prisons.

22. McHugh J recognised that the dispositive issue was whether the conclusion of the Court of Appeal that the suspended sentence was manifestly inadequate was correct, but framed the decisive question on that issue to be whether the Judge was correct to take into account that there was a grave risk that Ms York might be killed or seriously harmed by other prisoners while she was in custody. 

23. McHugh J reasoned that because the common law was equally concerned for the physical safety of each citizen, it is appropriate for a sentencing Judge to take into account a grave risk that a convicted criminal could be killed or harmed in gaol.  McHugh J concluded from that general principle that a ‘sentencing judge must endeavour not only to protect society from the risk of a convicted criminal re‑offending but also to protect the convicted criminal from the risk of other prisoners re-offending while in jail’.[20]  Even though McHugh J stated the principle in wide terms which extended beyond the special category of informer, his Honour accepted that the weight to be given to the risk depended on all of the circumstances of the case, including the likelihood if its occurrence.  McHugh J rejected the reasoning of the Court of Appeal to the effect that to suspend the sentence by reason of the threats made against Ms York by criminals would undermine the criminal justice system, and its criticism of the Judge’s approach as one which ‘bow[ed] to pressure from criminals’.[21]

    [20] (2005) 225 CLR 466 at [22].

    [21] (2005) 225 CLR 466 at [31].

24. McHugh J placed an important limit on the duty of a sentencing judge’s endeavour to protect a convicted criminal from violence in prison:[22]

    Where a threat exists — as it often does in the case of informers and sex offenders — recommendations that the sentence be served in protective custody will usually discharge the judge’s duty.  Here the learned sentencing judge concluded on persuasive evidence that no part of the Queensland prison system could be made safe for Mrs York.  

    [22] (2005) 225 CLR 466 at [32].

25. With respect, the relationship between the exercise of the sentencing power and the discharge of a duty by making a recommendation on how a prisoner should be detained is not obvious to me.  Nor is it obvious how a recommendation to that effect can have any legal effect under the statutory regimes which govern prisons.

26. Hayne J agreed with the proposition that any attempt to measure the extent of risk to Ms York was bound to fail for the reasons given by Gleeson CJ, noting that execution of sentences of imprisonment passed by the Courts, and caring for prisoners under sentences are tasks committed to the executive arm of government and regulated, for the most part, by legislation. 

27. Hayne J held that the conditions of detention were a relevant consideration, at least when ‘those conditions … are more onerous than … conditions undergone by other prisoners’.[23]  All of the authorities, save one, cited by Hayne J in support of the proposition concerned the sentencing of informers.  The remaining case was the decision in R v Laws in which the risk of assault of a popular and influential radio announcer, and law and order campaigner, was found to warrant a simple bond instead of periodic detention.  Hayne J continued:[24]

    And in this case, it was well open to the primary judge to conclude that the “very high” risk of physical harm to the offender in prison would not only affect the conditions under which she would serve a sentence but also be likely to lead to radically different consequences for the appellant from the consequences of imprisonment for other prisoners.

    [23] (2005) 225 CLR 466 at [38].

    [24] (2005) 225 CLR 466 at [38].

28. Callinan and Heydon JJ also framed the question before them to be whether the Court of Appeal had erred in finding manifest inadequacy and proceeded from the incontrovertible finding of the Judge there was a very real risk of retributive violence against Ms York.  The reasons for their Honours’ conclusion was that the Court of Appeal had erred appear in the penultimate paragraph of their reasons.  I set out paragraph [68] of York.[25]

    This is not to identify sentencing error on the part of the trial judge, but to express a hope that the facts will turn out to be different from the uncontradicted, plausible and therefore compelling evidence as to them which was accepted and relied on by the trial judge. This is so even if ‘must’ were intended in the passage quoted, to mean ‘should’. If the responsible authorities choose not to, or are unable to respond to the risks proved in a case, courts can and will be left with the impression, as the sentencing judge was here, that those authorities are indifferent to, or insufficiently concerned for the physical safety of incarcerated persons. The imposition of a sentence of a shorter duration, because of the risks to the appellant's safety, than would otherwise be imposed, can do nothing to meet or reduce those risks except the period of exposure to them. The unusually strong and uncontradicted evidence in this case made it a special one. In those circumstances there was no sufficient basis for interference with the primary judge's sentencing discretion.

    (Emphasis added)

    [25] (2005) 225 CLR 466 at [68].

1. As can be seen from the underlined sentence, Callinan and Heydon JJ distinguished between suspending a sentence of imprisonment and reducing the term of that imprisonment, because in the latter case only the period of exposure to the risk would be reduced.

2. In that respect the decision in York bears some similarity to the result and reasoning in R v Laws (No 2)[26] to which I earlier referred.  In that case the risk of personal injury, or worse, was taken into account in placing Mr Laws on a bond instead of periodic detention because prisoners so detained were not segregated.  Before turning to some recent authorities, which have considered York, it should be noted that even though York was decided some three years before the decision of the Full Court of this State, in Partridge, it was not cited.  However, the decision in Partridge is consistent with my identification of the determinative reasoning in York.

   [26] [2000] NSWSC 885; (2000) 116 A Crim R 70.

3. In Richardson v R,[27] the Court of Appeal gave permission to appeal against sentences imposed on a former law enforcement officer for offences of domestic violence but dismissed the appeal.  Relying on the decision in York, Johnson J accepted that the safety of an offender in prison is, generally, a relevant matter to take into account when passing sentence but his Honour acknowledged that it was the responsibility of the executive arm of government to minimise the danger to inmates, and that recommendations that the sentence be served in protective custody will usually discharge a sentencing judge’s duty.  Johnson J also referred to New South Wales v Bujdoso, a decision of the High Court which affirmed the duty of care owed by prison authorities to safeguard prisoners against assaults by their fellow inmates.  In Bujdoso the Court said:[28]

   … In a prison, the prison authority is charged with the custody and care of persons involuntarily held there.  Violence is, to a lesser or a greater degree, often on the cards.  No one except the authority can protect a target from the violence of other inmates.  Many of the people in prisons are there precisely because they present a danger, often a physical danger, to the community.  It is also notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners. …

   [27] [2021] NSWCCA 304.

   [28] (2005) 227 CLR 1 at [44].

4. The decision in Bujdoso shows that the law of negligence provides a control mechanism by which the executive can be held to account for failing in their duty to protect prisoners.  The existence of that control mechanism is good reason not to review or evaluate the executive’s management of prisons in the exercise of the sentencing power.

5. In Barry v Western Australia,[29] on an appeal on the ground of sentencing disparity with a co-offender, Buss, Mazza and Newnes JJA held that it was proper for the sentencing judge to take into account that the appellant’s co‑offender would be held in protective custody because of his position as Sergeant‑at-Arms of a motorcycle gang.  The offence was demanding money with menaces arising out of the co-offender’s membership of the motorcycle gang.  On that ground, Newnes JA dismissed the appellant’s complaint of disparity between his sentence and that imposed on the Sergeant-at-Arms.  Buss and Mazza JJA allowed the appeal because, even after taking into account the ‘harder’ time which would be served by the Sergeant-at-Arms, the sentences did not adequately reflect the appellant’s lesser role.

   [29] [2012] WASCA 175.

6. With respect, the factual circumstances in Barry expose how problematic an extension of the informer exception is.  The sense of grievance of an offender can only be exacerbated if the explanation for the relatively benevolent treatment of his co-offender is the imposition of a protective regime necessitated by his higher role in the criminal organisation out of which the offending arose.  Members of the public would also, very reasonably, feel some unease about such an approach.

7. It is important to observe that the test for reduction on account of hardship is a relative one which focuses on the additional burden over and above that carried by the prison population generally.  The test is relative because the general conditions of imprisonment are a matter for the executive government.  For that reason, the hardship caused by a failure of prison authorities to provide prisoners generally with medical treatment of the same standard as that which might be accessed in the community does not warrant a sentence reduction.  The same principle must apply to the general conditions of detention calculated to segregate prisoners according to their security rating and risk profile. 

8. In Milenkovski v Western Australia[30] the Court of Appeal again considered the weight which should be given to the circumstance that a member of an outlaw motorcycle gang convicted of drug trafficking would be kept in protective custody to guard against the risk of assault from a member of rival gangs.

   [30] (2014) 238 A Crim R 535.

9. After a survey of the authorities Buss JA distilled the following principles.

   152 First, the fact that an offender has served or is likely to serve at least part of a term of imprisonment in conditions that are materially more arduous than those applicable to the general prison population is a factor to be taken into account in the determination of the sentence.

   153 Secondly, if it is submitted, accepted or otherwise apparent at the sentencing hearing that an offender has been or is likely to be held in custody under conditions that are, at least in some respects, materially more arduous than those applicable to the general prison population, the prosecutor and defence counsel should provide the sentencing judge with all available information as to:

   (a)   the facts and circumstances of the offender's detention in custody;

   (b)   how those facts and circumstances differ from the facts and circumstances applicable to the general prison population; and

   (c)   the nature and extent of any consequential hardship or benefit to the offender.

   154 Thirdly, the weight to be given in the sentencing outcome to an offender's detention under conditions that have been or are likely to be materially more arduous than those applicable to the general prison population will depend on all the facts and circumstances of the case including, for example, the reasons why the offender required or is likely to require protection and the duration or likely duration of the materially more arduous conditions. Plainly, any benefits to the offender, as well as the hardships, from the special nature of the offender's detention must be taken into account.

   155 Fourthly, greater leniency or a larger discount will ordinarily be given to an offender who is at risk of reprisals from other criminals held in prison because of the offender's cooperation with law enforcement authorities than an offender who is at risk of reprisals because of grudges arising in the context of the illegal activities of rival criminal gangs. The reason for this difference in treatment lies in the public policy rationale for allowing leniency or a discount for cooperation with law enforcement authorities, namely the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime. This rationale is absent where the risk to the offender is attributable to grudges of the kind I have mentioned.

   156 Also, greater leniency or a larger discount will ordinarily be given where the materially more arduous conditions have caused or exacerbated an offender's physical or mental illness or disability than where those conditions have not had that deleterious effect on an offender.

   157 Fifthly, the justification for allowing an offender some leniency or a discount where he or she has been or is likely to be held in custody under conditions that are materially more arduous than those applicable to the general prison population is that time spent in custody under materially harsher or more onerous circumstances is, in general, equivalent, in evaluating the sentencing objectives of punishment, denunciation, personal deterrence and general deterrence, to a longer period in custody under materially less harsh or onerous circumstances.

10. For the reasons I have given, at least in South Australia, the two categories mentioned in [155] and [156] are the only, so far recognised, categories in which a reduction will generally be made on account of uncommonly harsh conditions or significant risks to a prisoner’s safety.  It is not a matter of simply giving greater weight in some cases than in others.  Moreover, it is my view clearer guidance is required to avoid the problematic aspects and sometimes paradoxical result of treating the reasons for protective custody as going only to the matter of weight. 

11. Respectfully I consider it to be plain that there cannot be a general rule to the effect of [152] and [157] of the reasons of Buss J.  It is not obvious to me how it can be proper to consider the nature of the conditions of imprisonment for the purpose of evaluating the length of the term of imprisonment which may satisfy the sentencing objectives of punishment and personal deterrence.  The penalty prescribed at the foot of statutory offence provisions does no more than prescribe the maximum term.  It makes no reference to the conditions of imprisonment.  The statutory delineation between simple imprisonment and imprisonment ‘with hard labour’ has long been abolished.[31]  The penalty provision does not allow for different sentencing regimes based on prison conditions.  Orders of the Court imposing imprisonment assign the detention of offenders to the executive on such conditions as it chooses to provide.

    [31]   Criminal Law Act 1776 (16 Geo. 3 c. 43); Penal Servitude Act 1853 (16 & 17 Vict. C. 99); Criminal Justice Administration Act 1914 UK; Research 1948 (UK) Australian equivalents

12. The centrality of the requirement, that the burden of imprisonment will not mitigate a sentence unless it is relatively and significantly heavier than the burden on the general prison population, reveals something about the underlying rationale for the principle and its limits.

13. If the peculiar burden was a sufficient justification to reduce a sentence, by way of a re-evaluation of the term necessary to meet the demands of punishment and personal deterrence, it would mean that a senior member of a criminal organisation requiring protection for reprisal should receive the same downward adjustment as that of his associate who has facilitated his prosecution.

14. Moreover, if that were the proper approach, longitudinal changes over time, either by way of an enlightened improvement in general prison conditions, or a deterioration due to overcrowding, would require the periodical calibration of sentencing tariffs by sentencing courts.  The result would be that an offender sentenced with no reduction when prison conditions were favourable might complete that sentence when the conditions had deteriorated alongside a subsequently sentenced prisoner whose sentence had been reduced.  No such suggestion has ever been made.  On the contrary, the focus in the authorities is on the relativity of burdens between serving prisoners.

15. As to the personal deterrence, it is far too subtle an exercise to relate the burden of imprisonment with the effectiveness of personal deterrence which is affected by so many other strong drivers.  Moreover, it would mean that some incalcitrant recidivists would receive no, or a much smaller, reduction than other prisoners suffering the same unusually burdensome condition.

16. Finally, as I have already observed, that approach fails to recognise that the sentencing objective of community protection may effectively overwhelm the reduction.

17. The problematic nature of a justification based on an adjustment of what is necessary to meet sentencing objectives suggests that rationale for reducing an especially burdensome term of imprisonment lies in the unfairness in the offender enduring those burdens having regard to the reasons for imposing them.

18. In the case of informers, that unfairness is obvious enough because the burden is directly related to risk of serious harm to which they have exposed themselves by acting in the public interest.  In the case of offenders with serious physiological or psychological impairments, the unfairness is analogous to discrimination against disabled persons in the community generally.  For law enforcement officers and the like, whose offences are not related to their office, it is unfair that they should carry the burden which arises from the need to protect them from reprisals on account of their public service.

19. On the other hand, there is no relevant unfairness in mitigating the term of imprisonment of offenders if their peculiar burden arises from the special prison security measures necessitated by the very nature of their crime.

20. It can be accepted that the conditions in which an offender will serve a sentence of imprisonment, and the possible consequences on the prisoner serving that sentence, are always a relevant consideration in the sense that an evaluation of those matters may reveal a good reason to mitigate the sentence that would otherwise be imposed.  However, whether or not those conditions or consequences will, after a proper evaluation, mitigate the sentence does not have a simple answer.  In the case of the hardship and possible consequences of imprisonment for prison informers the answer given by the authorities is clearly yes, largely for public policy reasons.  In cases in which the conditions of imprisonment will visit significantly greater hardships or consequences on the offender than on other prisoners through no fault of his or her own, the answer again is generally yes.  The category of prisoners who will suffer substantially greater hardship by reason of the operation of the inherent elements of imprisonment on their physical or psychological infirmities[32] serves as an example.

    [32]   R v Smith (1987) 44 SASR 587.

21. However, if the burden of imprisonment and its possible consequences can be attributed to the misconduct of the offender, the answer in this state is generally no.  Equally if the burden or possible adverse consequences are an inherent result of the management of prison security by the executive arm of government, the answer, again, is generally no. 

22. I acknowledge that many interstate authorities have generally taken a different approach.  However, that approach does not appear to have been contested and its problematic application has not been considered.  Moreover, the decision of this State’s Full Court in Liddy is inconsistent with a general rule that especially burdensome prison conditions designed to protect a prisoner from attacks motivated by his abhorrent offending will mitigate the sentence.  Respectfully I am of the opinion, in the absence of any consideration by the interstate authorities of the matters to which I have referred, that there is no general rule such as that which they have applied. 

23. The sentencing Judge’s concern was for the welfare of Mr Lian because he was at risk of sexual assault.  Her Honour’s response was a humane one, which many would share.  The Judge was also correct to observe that a sentence of imprisonment is not intended to deprive prisoners of all human dignity. 

24. However, the often reported and, importantly, authoritatively stated principle, that the protection of prisoners is a matter for the executive government and, in particular, the Department for Correctional Services, is not an empty mantra.  It is a fundamental principle of sentencing, delineating the respective limits of the responsibilities of the judicial and executive arms of government.  If it were sufficient for a sentence to be substantially reduced, that the offender merely be at ‘real risk’ of sexual assault, then many prisoners who are not sexually assaulted whilst imprisoned would benefit from unwarranted leniency. 

25. If the courts were to regularly reduce sentences, other than in the recognised categories, for the possibility that prison authorities might fail in their duty, or that criminal acts might still be committed by other prisoners even though the authorities have done all that it is reasonably practicable to do, then the balancing of the competing sentencing criteria would be distorted.  General deterrence and the protection of the public from recidivist behaviour would be compromised. 

26. It would be a deplorable state of affairs if prison authorities ignored their common law duty to protect all prisoners from sexual abuse.  However, no evidentiary material was presented in this case to suggest that they fail to take all reasonably practicable measures to protect prisoners.  Assaults committed, despite the proper discharge of that duty, are, nonetheless, a tragic misfortune resulting from the need to imprison some offenders. 

27. Responsibility for the protection of the human dignity of prisoners must rest with the executive government which is ultimately accountable to the public.  I acknowledge the imperfect nature of that accountability in our system of responsible government.  Nonetheless, the public expects that each arm of government will hold to its proper role.  The judiciary has no mandate to modify, and possibly distort the exercise of its sentencing powers, by taking into account the difficulties encountered in protecting prisoners which it is the responsibility of the executive to manage.

28. There are no grounds particular to Mr Lian on which to reduce his sentence having regard to the general rules which I have adumbrated.

29. The Judge expressly departed from a reasoned application of legal principle and preferred the guidance of her Honour’s own conscience.  For the reasons I have given, even though the conditions of an offenders imprisonment are always relevant, whether or not they can mitigate the length of a term of imprisonment must be determined in accordance with the general rules which I have set out in [68]-[71] above.  The Director has established the error complained on in Ground 1.  Ground 2 is made out for the reasons given in [18] above. 

    Ground 3 – Visa cancellation

30. The Judge had regard to the anticipated cancellation of Mr Lian’s visa in this way:

    I accept that Mr Simmons is an expert in this area and I accept the expert opinions of Mr Simmons as I have summarised.  Mr Simmons was careful in his report to identify those outcomes which were entirely speculative.  Accordingly, I will take into account the fact that any sentence of imprisonment that I impose for this offence will result in your visa being cancelled.  Unless and until your visa cancellation is revoked you will not be released on parole into the community but will be held in immigration detention for the balance of your parole period and thereafter until such time as the process of overturning your visa has concluded.  Although the period that you will be in immigration detention cannot be determined, it is likely to be lengthy.  If deported, you will be permanently excluded from Australia where your immediate family lives.

31. The statutory cancellation of the respondent’s visa was a relevant consideration because the cancellation was a statutory certainty.  True it is that it is only possible to speculate about the consequence of that cancellation, but in the exercise of the sentencing discretions, competing contingencies and possibilities are often factored into the ultimate result.  The Judge therefore did not err in having regard to the possible consequences of the cancellation of Mr Lian’s visa.  I would dismiss the appeal on Ground 3. 

32. However, the additional detention which might be visited on Mr Lian and the hardship he might suffer if he were deported, could not justify a substantial reduction, reflecting the length of that detention, in what would otherwise be a proportionate sentence.  That is so for two reasons.  First, even though the visa cancellation is a statutory certainty, the way in which the Minister would exercise its discretion cannot be known.  Secondly, the adverse consequences of an unfavourable exercise of the discretion are not imposed by way of penalty, but in the enforcement of Australian migration law calculated to protect the Australian community.  Moreover, in sentencing for offences of this kind in which general deterrence, and the associated protection of children is of primary importance, only a minor adjustment could ever be justified.  Accordingly, the cancellation of Mr Lian’s visa is incapable of justifying a sentence which falls so far below the range of sentences otherwise appropriate for offending of this kind.

    Ground 4 - Imprisonment of Young Offenders

1. The Judge proffered as a reason for extending leniency to Mr Lian ‘the well‑established principle’ that for a young first-time offender going to gaol is likely to impair rather than improve a young offender’s prospects of rehabilitation.  The following authorities show that there is no such principle of universal and unqualified application.  The source of the Judge’s remarks appear to be the following passages from the judgment of Hinton J, with whom Blue and Stanley JJ agreed, in R v Williams.[33]

   [39]In the present case, the combination of youth, intoxication, and mental illness serve to temper the demands of general deterrence and condign punishment.

   [40]Starting with youth.  It is to be recalled that the applicant had only just turned 18 when he committed the aggravated robbery and was barely 18 ½ when he breached the conditions of his bail and robbed the service station. 

   [41]In Azzopardi v The Queen Redlich JA, with whom Coghlan and Macaulay AJA agreed, set out the principles applicable to sentencing a young adult.  Firstly, the common law understands that young offenders, being immature, are “more prone to ill-considered or rash decisions”.  They “may lack the degree of insight, judgment and self-control that is possessed by an adult” and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

   [42]Secondly, the common law accepts that there is greater “potential for young offenders to be redeemed and rehabilitated”.  This is because they are still at a stage of mental and emotional development that is capable of being positively influenced and changed.  The rehabilitation of young offenders is one of the objectives of the criminal law and, done effectively, may protect the community from further offending.

   [43]Thirdly, regard must be had to the impact that incarceration in an adult prison can have on a young offender.  As acknowledged in The Queen v McGaffin, such an experience will more likely impede, rather than improve, the offender’s prospects of successful rehabilitation.  While in prison a youthful offender will be exposed to corrupting influences that may further entrench their criminal behaviour or exacerbate anti-social tendencies.  To expose the youthful offender to such influences runs contrary to the purpose for which punishment is imposed.  Self-evidently, the potentially detrimental effect of adult prison on a youth offender has adverse flow‑on consequences for the community.

   [44]Redlich JA also acknowledged that there remains a need to balance the mitigating influence of an offender’s youth with the increased need for deterrence in the case of very serious violent offending. …

   (Citations omitted)

   [33] [2018] SASCFC 14 at [39]-[44].

2. The reasons given and observations made by a court must always be understood in their factual and litigation context.  The appellant’s complaint in Williams was that a sentence of 6 years and 4 months, for which a non-parole period of 12 months was fixed, for two offences of robbery was manifestly excessive and that the sentence should have been suspended.  The appeal was dismissed even though the appellant had not previously been sentenced to imprisonment.  The observation made in paragraph [43] is no more than a reference to one of several considerations anticipated in [39] to which a court must have regard, and which ‘temper the demands of general deterrence and condign punishment’.[34]

   [34] [2018] SASCFC 14 at [39].

3. The principle that rehabilitation is a prominent consideration when a young person is before a sentencing court as an adult for the first time, can be traced back to the observations of Bray CJ in Arnold v Samuels, where Bray CJ observed that:[35]

   It cannot be that all the considerations which have induced the law to make special efforts to reclaim youthful offenders disappear magically as the clock strikes twelve at midnight on the day before the offender’s eighteenth birthday. 

   [35] (1972) 3 SASR 585 at 596.

4. That approach was applied more generally to youth in R v Weaver.[36]  However, shortly thereafter in The Queen v Smith,[37] Bray CJ made it plain that the Court in Weaver never meant to say that youthful offenders should never be sentenced to imprisonment.

   [36] (1973) 6 SASR 265 at 267.

   [37] (1975) 12 SASR 8 at 9.

5. The reasons for judgment of White J in R v McGaffin[38] are to the same effect:

   The youth of an offender who has attained the statutory age of majority is usually regarded as a mitigatory factor in sentencing.  This may be because courts recognise that the young and immature are more prone to ill-considered or rash decisions; or because they consider young offenders may not have appreciated fully the nature, seriousness and consequences of the criminality involved in their conduct; or because they recognise the potential for young offenders to be redeemed and rehabilitated; or because they consider that the effect of incarceration in an adult prison is likely to impair, rather than improve, the offender’s prospects of a successful rehabilitation.  Thus, in R v Carroll, King CJ spoke of the courts being “inclined to mercy in the case of young people facing prison for the first time”.  In R v Mills Batt JA endorsed the following propositions concerning the sentencing of youth offenders:

   (i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises. 

   (ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focussing on rehabilitation is to be preferred.  (Rehabilitation benefits the community as well as the offender). 

   (iii)A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality.  The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. …

   (Citations omitted)

   [38] (2010) 206 A Crim R 188 at [69].

6. It is important to bear in mind that the observations of White J were made by way of explication of the reasons for a sentencing court’s inclination to mercy in the case of young persons facing imprisonment for the first time.  The observations made by White J, in that particular context, should not be understood to state, as a universally applicable finding of fact, that imprisonment is always likely to impair the rehabilitation of a young offender. 

7. It can be accepted in that respect that there are real risks that imprisonment for the first time of a young offender with older incalcitrant offenders will generate resentment and expose a young offender to anti-social attitudes, and associates, which will hinder his or her rehabilitation in the longer term.  However, the ‘well‑established principle’ is only that the youth of an offender is ‘… usually regarded as a mitigatory factor in sentencing’.  One aspect of the application of that principle, which will invariably depend on the circumstances of the particular offence and offender, may be the mitigation of a sentence, in part, due to the possible adverse impact of incarceration on a young offender’s prospects of rehabilitation.

8. Moreover, as trite as it is, it is necessary to observe that rehabilitation is just one of the competing purposes of sentencing.  General deterrence will limit the degree to which a sentence, even for a young offender who has not before been imprisoned, may be ameliorated.  When imprisonment must be imposed, with the consequence that a young offender will be exposed at least for some time to a prison culture influenced by the hardened criminals detained there, youth remains a mitigating factor but different considerations apply.  The sentence may be modified, within the range allowed by considerations of deterrence and punishment, to encourage a youthful offenders’ rehabilitation on his or her release.  However, a disproportionate reduction in the term of imprisonment cannot be justified.

9. Furthermore, the discretion to mitigate a sentence imposed for serious sexual offences on young offenders must be exercised coherently with the statutory limitations placed on the release of such offenders on community-based sentencing orders. Sections 71 and 96 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) limit the power of sentencing courts to impose home detention or to suspend a sentence of imprisonment in respect of serious sexual offences, including the offence of maintaining an unlawful sexual relationship. Those limitations are relaxed only if the offender is 20 years of age or less. There is, therefore, no, or very limited, scope to impose those community-based sentences on offenders who are 21 years of age or older. In exercising so much of the sentencing discretion still entrusted to sentencing judges, it is necessary to have regard to the policy reflected in those statutory provisions.

10. The Judge erroneously treated the observations of the Court in R v Williams and R vMcGaffin as a generally applicable finding of fact when it is no more than one of the, sometimes applicable, rationales for the sentencing principle that youth is generally a mitigating circumstance.

11. Ground 4 has been established.

    Ground 5 – A manifestly inadequate sentence

12. The sentencing guidelines for the offence of maintaining an unlawful sexual relationship with a child were established by this Court in R v D.4  The offender in R v D was the victim’s stepfather and the offences were therefore aggravated by the breach of the trust reposed in him to care and protect his stepdaughter.

13. In R v D, Doyle CJ said:[39]

    [39] (1997) 69 SASR 413 at 423-424.

    This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future.  By this I mean cases involving a course of conduct including sexual intercourse with a child, and committed by a person in a position of trust and authority.

    …

    Offences such as the present one have an insidious effect upon the community, and that is also something to consider.  They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children.  As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing. 

    It appears that the sexual abuse of children by persons in a position of trust is quite widespread.  It may not be occurring more often than it did in the past.  It may well be that it is now being detected more often than it was.  Be that as it may, the offences that are involved come before the courts with disturbing frequency.  It is for those reasons that I consider that the court should increase, to a moderate degree, the level of penalty imposed for such offences.

    I also consider, upon reflection, that there is a need to reflect more clearly the fact that the maximum sentence for unlawful sexual intercourse with children under 12 years of age is life imprisonment.  In some of the cases referred to, no real distinction seems to be drawn, in terms of penalty, between such cases and cases of children over 12 years of age.  That distinction is not to be achieved by reducing the penalty for offences in the latter category.  To reduce sentences in such cases would not be to maintain an adequate standard of punishment.  The distinction should be reflected by increasing the penalty in the case of offences involving children under 12 years of age, so that such cases attract a heavier penalty than cases involving children over 12 years of age. 

    Of course, the court must also consider the circumstances of the offender.  As I have already said, cases such as this are truly tragic, because the offender is often a person of otherwise good character.  The effects of imprisonment upon such a person are likely to be most adverse, but the need remains for the court to do what it can to protect children against such persons.

    …

    In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.

    When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment.

14. In Warner v The King,[40] I explained the effect in law of the adoption of the sentencing standard in R v D as follows:

    It is important to properly understand the legal significance of the adoption of a sentencing guideline by an intermediate Court of Appeal.  Doyle CJ spoke of multiple sexual offences against children under 12 years of age attracting ‘a head sentence of 12 years’ on conviction following a plea of not guilty but stressed that he was not laying down a precise figure and that in the circumstances of a particular case the starting point might be higher or lower.  Bleby J spoke of the penalty being ‘generally applicable’ to such offences.  A sentencing guideline adopted by a court therefore differs markedly from a legislative mandate.  Nor is a guideline a direction to sentencing judges to impose 12 years in all such cases unless there is a good reason to impose a different penalty.  A guideline is an observation on the range in which sentences for offences of a particular kind will tend to coalesce if the competing sentencing objectives are properly balanced.

    The importance of the guide given in R v D is that it indicates the range in which sentences for repeated sexual offending against the same victim could be expected to fall following the Court’s review of the relative weight which should be accorded to deterrence and the protection of children.  It follows too that the guideline accommodates a range of factors personal to the offender which are generally encountered in cases of that kind.  Nonetheless, as Doyle CJ observed, the guidelines leave the precise balancing of all the circumstances of a particular offence and offender to the sentencing Judge.  However, the sentences imposed will tend to oscillate within a small range around the indicative sentence unless there is a circumstance peculiar to the case which outweighs significantly the generality of circumstances which characterise cases of this kind.

    [40] [2022] SASCA 142 at [19]-[20].

15. The standard in R v D was legislatively applied by s 68(1) of the Sentencing Act to all offences of that kind whether committed before or after the decision in that case. Section 68 now provides, more generally, that sexual offenders are to be sentenced in accordance with the standards applicable at the time of sentencing.

16. The sentencing standard in R v D applies directly to offending, including unlawful sexual intercourse, with a child committed by a person in a position of trust.[41]  Holding a position of trust is an aggravating circumstance.  Sentences for sexual offending against children attended by an aggravating circumstance of that kind cannot be any more severe than is proportionate to the gravity of the aggravating circumstance.  It follows that the establishment of a standard for sexual offences against children, when the offence is attended by that aggravating circumstance, necessarily effected an increase in the appropriate range for all sexual offending by adults against children.

    [41]   Warner v The King [2022] SASCA 142 at [118] per Doyle JA.

17. Moreover, it has long been accepted that sentences for sexual offending against children must be calculated to protect children, who are by reason of their age, naïve and vulnerable, from the predations of adults.  Children are easily influenced and have only a limited understanding of the nature, consequences and, in particular, risks of sexual relationships with adults.  In R v Williams, King CJ explained the policy of the law in sentencing adults who have committed sexual offences against youth in broad terms, unlimited by the particular position held by the offender:[42]

    The law which prohibits sexual intercourse with young girls exists in order to protect young girls from their own inclinations, until they have reached a sufficient degree of maturity in life to make sensible and responsible decisions as to their own lives.  It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advantage of the sexual inclinations of young girls. 

    The reasons for decision of the Supreme Court of Canada in R v Friesen[43] are to the same effect.  I have extracted relevant passages and have attached them as Appendix A to these reasons.  I have also attached as Appendix B extracted findings of the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse on the impact of sexual offending on children with which all sentencing judicial officers make themselves familiar. I encourage all sentencing judges to familiarise themselves with the content of those materials.

    [42] (1990) 53 SASR 253 at 254.

    [43] [2020] 1 S.C.R. 424.

18. In R v Dyett,[44] this Court observed that some sexual offenders occupy positions which may be described as ‘an informal position of trust’ because of the influence they exercise over their victims.  There are not always clear, bright lines delineating formal positions of trust from informal ones, or from the offending of other adults who opportunistically take advantage of the naivete of youth. 

    [44] [2023] SASCA 41.

19. The increased severity of the guideline given in R v D was calculated to protect children from the long-term suffering caused by the sexual offending against them by adults.  That must remain the focus of sentencing all such offenders.  The nature and degree of the power imbalance between them, the upper end of which is the subject of the standard set out in R v D, will affect the relative severity of the sentences for sexual offending against children generally.

20. In cases in which the offender has been entrusted with the care of his victim general and personal deterrence and the importance of denunciation will weigh strongly against any mitigation of the standard.  Conversely, where that aggravating circumstance is not present, and there is only slight disparity in chronological and emotional maturity, the offender’s previous good character and prospect for rehabilitation may allow more room for leniency. 

21. However, there cannot be two distinct and unrelated categories of sentences for sexual offending against children; one for offenders in formal or informal positions of trust, and another for offenders who do not occupy these positions.  To ensure coherence in sentencing, and in order not to undermine the protection of children against all adult predators, a proportionate relationship between the categories must be maintained.  Sentences for all sexual offending against children will necessarily be fixed at a point along a continuum of sentences calibrated to reflect the particular offences, and the applicable maximum penalty, and the aggravating and mitigating circumstances of each case.

1. Alternatively, and in any event, even if there was a basis in the vulnerability of the respondent for attaching some weight to the risk that the respondent might be sexually assaulted in prison, it was a matter of limited significance in the context of the other considerations relevant to sentence.  However, it would seem from the sentence ultimately imposed by the sentencing judge that her Honour allowed this consideration – along with other potentially mitigatory considerations, such as the hardship associated with the respondent’s potential deportation, his young age, the fact that he was a first-time offender, his low risk of re-offending and his good prospects of rehabilitation – to overwhelm the exercise of her sentencing discretion.  Her Honour failed to attach appropriate weight to the seriousness of the respondent’s offending, as emphasised and elaborated upon by the Chief Justice.  The resulting sentencing was not only manifestly inadequate, but so much so that it is appropriate that this Court grant the Director permission to appeal, allow the appeal, and proceed to resentence the respondent in the terms proposed by the Chief Justice.

   Appendix A – Extracts from The Queen v Friesen [2020] 1 S.C.R. 424 (Supreme Court of Canada)

   (i) Personal Autonomy, Bodily Integrity, Sexual Integrity, Dignity and Equality

   [51] The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children.  This Court recognized the importance of these interests in Sharpe in the context of the production of child pornography.  As this Court reasoned, the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime (para.  92, per McLachlin C.J., and para.  185, per L’Heureux-Dubé, Gonthier and Bastarache JJ.).  Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity (see Sharpe, at paras.  172, 174 and 185, per L’Heureux-Dubé, Gonthier and Bastarache JJ.). 

   [52] We would note that the personal autonomy interest carries a somewhat different meaning for children than it does for adults.  Children under the age of 16 of course lack the capacity to consent to sexual contact with an adult.  As we will explain in detail later in these reasons, a child’s participation in such contact is not a mitigating factor and should never be equated to consent.  Instead, personal autonomy refers to a child’s right to develop to adulthood free from sexual interference and exploitation by adults (see Sharpe, at para.  185). 

   …

   [56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm.  Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R.  v.  McCraw, [1991] 3 S.C.R. 72, may often be more pervasive and permanent in its effect than any physical harm (p. 81).

   [57] A number of this Court’s decisions provide insight into these forms of harm.  In R.  v.  L.  (D.O.), [1993] 4 S.C.R. 419, L’Heureux-Dubé J. emphasized the emotional trauma that the nine-year old complainant experienced from sexual violence (pp. 439-42). Similarly, in McDonnell, McLachlin J.  (as she then was) stressed the emotional harm of the violation of the child victim’s integrity and sense of self-worth and control over her body that the child victim experienced as a result of being sexually assaulted while sleeping (para.  111).  The likely result of the sexual assault would be shame, embarrassment, unresolved anger, a reduced ability to trust others and fear that ...  people could and would abuse her and her body (para.  113). 

   [58] These forms of harm are particularly pronounced for children.  Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity (Sharpe, at paras.  158, 184-85 and 188, per L’Heureux-Dubé, Gonthier and Bastarache JJ.; G.  Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at § 12.64).  For this reason, even a single instance of sexual violence can permanently alter the course of a child’s life (Stuckless (2019), at para.  136, per Pepall J.A.).  As Otis J.A.  explained in L.  (J.-J), at p.  250: 

   [TRANSLATION] The shattering of the personality of a child at a stage where [the child’s] budding organization as a person has only a very fragile defensive structure, will result - in the long term - in suffering, distress and the loss of self-esteem. 

   …

   [60] Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers.  Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship (R.  v.  D.R.W, 2012 BCCA 454,330 B.C.A.C.  18, at para.  41).  If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim (see The ‘Statutory Rape’ Myth, at p.  292).  Children who are or have been in foster care may be particularly vulnerable since making an allegation can result in the end of a placement or a return to foster care (see R.  v.  L.M., 2019 ONCA 945, 59 C.R.  (7th) 410).  Even when a parent or caregiver is not the perpetrator, the sexual violence can still tear apart families or render them dysfunctional (R.  v.  D.  (D.) (2002), 58 O.R.  (3d) 788 (C.A.), at para.  45).  For instance, siblings and parents can reject victims of sexual violence because they blame them for their own victimization (see Rafiq, at para.  38).  Victims may also lose trust in the ability of family members to protect them and may withdraw from their family as a result (Rafiq, at paras.  39-41). 

   [61] The ripple effects can cause children to experience damage to their other social relationships.  Children may lose trust in the communities and people they know.  They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities (C.-A.  Bauman, The Sentencing of Sexual Offences against Children (1998), 17 C.R.  (5th) 352, at p.  355).  This loss of trust is compounded when members of the community take the side of the offender or humiliate and ostracize the child (R.  v.  Rayo, 2018 QCCA 824, at para.  87 (CanLII); R.  v.  T (K), 2008 ONCA 91, 89 O.R.  (3d) 99, at paras.  12 and 42).  Technology and social media can also compound these problems by spreading images and details of the sexual violence throughout a community (see R.  v.  N.G., 2015 MBCA 81, 323 Man.R.  (2d) 73). 

   (iii) Harm to Families, Communities, and Society

   [62] The Criminal Code recognizes that the harm flowing from an offence is not limited to the direct victim against whom the offence was committed.  Instead, the Criminal Code provides that parents, caregivers, and family members of a sexually victimized child may be victims in their own right who are entitled to present a victim impact statement (B.  Perrin, Victim Law: The Law of Victims of Crime in Canada (2017), at p.  55; see also Criminal Code, ss. 2 (victim) and 722).

   [63] The ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence.  Sexual violence can destroy parents and caregivers’ trust in friends, family, and social institutions and leave them feeling powerless and guilty (R.  v.  C.  (S.), 2019 ONCA 199, 145 O.R.  (3d) 711, at para.  6; Rayo, at para.  39; D.  (D.), at para.  13).  The harm to parents’ relationship with their children can also be profound.  For instance, children can react to the sexual violence by shutting their parents out of their lives (Rafiq, at para.  40).  Parents and caregivers may also bear the financial, personal, and emotional costs of helping their children recover and cope with emotional and behavioural challenges (see D.  (D.), at paras.  11-13).  In the words of one mother of a child victim, the sexual violence has taken many years from my son’s life and I know this will hurt me for the rest of my life (D.  (D.), at para.  11).

   [64] Beyond the harm to families and caregivers, there is broader harm to the communities in which children live and to society as a whole.  Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering (see Hajar, at para.  68; R.  v.  Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37; United Nations, Report of the independent expert for the United Nations study on violence against children, U.N.  Doc.  A/61/299, August 29, 2006, at p.  12).  In particular, children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood (D.  (D.), at paras.  37-38).  Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community (Standing Senate Committee on Human Rights, The Sexual Exploitation of Children in Canada: the Need for National Action, November 2011 (online), at pp.  10, 30 and 41).  In short, the costs that cannot be quantified are also profound.  Children are the future of our country and our communities.  They deserve to have a childhood free of sexual violence (Hajar, at para.  44).  When children become victims of sexual violence, [s]ociety as a whole is diminished and degraded (Hajar, at para.  67). 

   (iv) Wrongfulness of Exploiting Children’s Weaker Position in Society

   [65] The protection of children is one of the most fundamental values of Canadian society.  Sexual violence against children is especially wrongful because it turns this value on its head.  In reforming the legislative scheme governing sexual offences against children, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity (Badgley Committee, vol.  1, at p.  292; Fraser Committee, vol.  1, at p.  24, and vol.  2, at p.  563).  Yet instead of relating to children as equal persons whose rights and interests must be respected, offenders treat children as sexual objects whose vulnerability can be exploited by more powerful adults.  There is an innate power imbalance between children and adults that enables adults to violently victimize them (Sharpe, at para.  170, per L’Heureux-Dubé, Gonthier and Bastarache JJ.; L.  (D.O.), at p. 440, per L’Heureux-Dubé J.). Because children are a vulnerable population, they are disproportionately the victims of sexual crimes (George, at para.  2).  In 2012, 55 percent of victims of police-reported sexual offences were children or youth under the age of 18 (Statistics Canada, Police-reported sexual offences against children and youth in Canada, 2012 (2014), at p.  6).

   [66] Children are most vulnerable and at risk at home and among those they trust (Sharpe, at para.  215, per L’Heureux-Dubé, Gonthier and Bastarache JJ.; K.R.J., at para.  153, per Brown J.).  More than 74 percent of police-reported sexual offences against children and youth took place in a private residence in 2012 and 88 percent of such offences were committed by an individual known to the victim (Police-reported sexual offences against children and youth in Canada, 2012, at pp.  11 and 14).

   …

   (c) Degree of Responsibility of the Offender

   [87] Courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender’s degree of responsibility.  They must not discount offenders’ degree of responsibility by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence against children (Benedet, at pp.  310 and 314). 

   [88] Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child.  In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to (Arcand, at para.  58; see also M.  (C.A.), at para.  80; Morrisey, at para.  48).  For sexual offences against children, we agree with Iacobucci J.  that, save for possibly certain rare cases, offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child (Scalera, at paras.  120 and 123-24). 

   [89] All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender – the offender is treating the victim as an object and disregarding the victim’s human dignity (see R.  v.  Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48). As L’Heureux-Dubé J. reasoned in L.  (D.O.), the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women precisely because both forms of sexual offences involve the sexual objectification of the victim (p.  441).  Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation (Benedet, at p.  310; Hajar, at para.  67). 

   [90] The fact that the victim is a child increases the offender’s degree of responsibility.  Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable (R.  v.  Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 153). As L’Heureux-Dubé J. recognized in R.  v.  L.EW, 2000 SCC 6, [2000] 1 S.C.R. 132, [a]s to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions (para. 31, quoting R.  v.  L.EW (1997), 155 Nfld.  & P.E.I.R.  115 (N.L.C.A.), at para.  117, per Cameron J.A.  (L.E W (C.A.))).  Offenders recognize children’s particular vulnerability and intentionally exploit it to achieve their selfish desires (Woodward, at para.  72).  We would emphasize that the moral blameworthiness of the offender increases when offenders intentionally target children who are particularly vulnerable, including children who belong to groups that face discrimination or marginalization in society.

   
   

   Appendix B – Extracts from vol 3 of the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (2017)

   2      Understanding impacts

   Chapter 2 describes some common themes that are important for understanding both the impacts of child sexual abuse in institutional contexts and the impacts of the institutional response to the abuse.  It discusses:

   ·how child sexual abuse can have complex and profound effects on victims

   ·how impacts may differ by individual

   ·how impacts can emerge after ‘trigger’ events or at different stages of life, and can compound over time

   ·some common factors that may influence how victims are affected by child sexual abuse

   ·sources of strength and resilience that survivors draw on to help them to cope with, and manage, these impacts.

   These themes underpin the remaining chapters in this volume, which examine the different types of impacts experienced by victims of child sexual abuse and others, and the institutional responses to that abuse.

   …

   2.4     Factors that influence impacts

   As discussed above, the impacts of child sexual abuse in institutional contexts are not uniform among victims and can also vary throughout individuals’ lives.  The available research on child sexual abuse, which reflects what we were told in private sessions and public hearings, indicates that complex and connected factors influence the way victims are affected.  These factors include the:

   ·characteristics of the abuse, including the type, duration and frequency

   ·relationship of the perpetrator to the victim

   ·institutional contexts in which the abuse occurred

   ·social and historical contexts in which the abuse occurred

   ·individual characteristics, circumstances and experiences of the victim

   ·sources of strength and resilience available to each individual victim.

   …

   2.4.2 Relationship of perpetrator to victim

   Research suggests that the nature of the relationship between a person who sexually abuses a child and the victim may contribute to the effects of the abuse.

   Trusted adult or authority figure

   Research on child sexual abuse in all settings suggests that abuse by trusted adults who are close to the child can increase the impacts of the abuse.  Children need to maintain attachment relationships for their survival, and it can lead to trauma when those relationships are betrayed as a result of abuse.  In institutional settings, child sexual abuse by a trusted and admired role model or spiritual leader has been noted across qualitative research studies to disorient the victim, leaving them with a profound sense of betrayal and powerlessness.

   …

   2.4.6 Sources of strength and resilience

   The sources of strength and resilience that survivors draw on over the course of their lives can play a key role in how they are able to cope with, and manage the effects of, the abuse.  A survivor’s ability to draw on these sources of strength and resilience can be limited by the extent of their trauma; the intersections of economic disadvantage, racism and discrimination; cultural barriers; disability; and community resources.  Still, in private sessions, most survivors described to us sources of strength – whether personal or environmental – they had drawn on at various stages of their lives.

   …

   3      Impacts of child sexual abuse

   As discussed in Chapter 2, the Royal Commission heard that the impacts of child sexual abuse can differ for each individual and across a lifetime.  Each story we were told was unique, reflecting the type of sexual abuse, when and where the victim was abused and by whom, and their individual circumstances. 

   Although each individual is affected differently, some impacts are commonly experienced by survivors of child sexual abuse in institutional contexts.  This chapter describes the common impacts we heard about in private sessions, public hearings and the available research on child sexual abuse.  It begins by describing how sexual abuse can result in profound trauma, potentially interrupting normal psychosocial development at every critical stage of a child’s formative years.  It then describes the many areas of victims’ lives that can be affected by sexual abuse in institutional contexts, including:

   ·mental health

   ·interpersonal relationships

   ·physical health

   ·sexual identity, gender identity and sexual behaviour

   ·connection to culture

   ·spirituality and religious involvement

   ·interactions with society

   ·education, employment and economic security.

   Many of the commonly identified impacts of child sexual abuse in institutional contexts are also experienced by victims of child sexual abuse in familial and other contexts.  However, research suggests there may also be distinct impacts when children are sexually abused in institutional settings.  These include impacts on spirituality and religious involvement, such as a loss of faith and a loss of trust in the religious institution, for those victims sexually abused in a religious context.  Distrust and fear of institutions and authority are also distinctive effects on some victims of child sexual abuse in institutional contexts.

   …

   3.1     Effects of trauma on children’s development

   Experiences in an individual’s childhood can shape their health and wellbeing throughout their entire life.  Therefore, it is important to understand how sexual abuse can affect the emotional, social and physical development of the child. 

   As discussed in Chapter 2, while not all victims are affected by child sexual abuse the same way, many survivors told us their experiences were traumatic, with profound, complex and long-lasting effects.  There is strong evidence that early onset trauma caused by adverse childhood events, including sexual abuse, can have a lasting impact both on childhood development and on the formation of a secure child-caregiver attachment, as well as on subsequent interpersonal relationships.  The potential long-term impact of the sexual abuse is likely to be mediated by victim, perpetrator and institutional factors, and the broader social and historical contexts in which the sexual abuse took place.  Significantly, the impacts of childhood trauma manifest differently according to individual vulnerabilities at particular critical phases of development. 

   Developmentally appropriate early intervention that is both trauma-informed and recovery-oriented can assist children who have been subjected to sexual abuse to heal and recover.

   …

   3.1.2 Effects of trauma on the developing brain

   Trauma affects more than just the emotional and psychosocial development of the child.  Increasingly, research suggests that trauma affects the chemistry, structure and function of the developing human brain, especially when it is repeated or ongoing.  Early life trauma affects a person’s ability to process and regulate emotion, with potential impacts on empathy and social interaction.  In particular, it affects the hypothalamic-pituitary-adrenal (HPA) axis, which regulates anxiety and manages the ‘freeze, fight or flight’ response to stress.

   …

   3.2     Mental health

   I have been diagnosed by a psychiatric specialist with chronic dysthymia, episodes of major depression in partial remission, post-traumatic stress disorder, and substance abuse in remission.  I have also been diagnosed with generalised anxiety disorder and chronic insomnia.  I have suffered significantly from these disorders.  I have regular suicidal ideation which requires medication to control.  Even with medication I still think about suicide to the point that it is almost a part of me.  I require [sleeping tablets] to sleep at night and can only sleep anywhere between two to six hours.  Without medication I sleep less than one hour a night.

   Ongoing mental health issues were the most commonly described impacts of child sexual abuse that victims identified in private sessions.  Of the survivors who told us about impacts, 94.9 per cent spoke about their mental health-related issues following abuse, including depression, anxiety and PTSD, as well as conditions such as schizophrenia and bipolar disorder.  Other symptoms of mental distress included nightmares and sleeping difficulties, and emotional issues such as feelings of shame, guilt and low self-esteem.  Notably, survivors often had multiple mental health disorders or issues at the same time, rather than in isolation. 

   An association between child sexual abuse and the adverse mental health consequences that many victims experience has been consistently described in research on child sexual abuse, as well as in the limited number of studies specific to child sexual abuse in institutional contexts.  For example, one Australian study suggested that more than one in five victims of child sexual abuse in the study had contact with a public mental health facility in their lifetime, compared with less than one in 10 with no history of sexual abuse.

   As discussed in Chapter 2, not all victims of child sexual abuse develop mental health issues or adjustment difficulties in adulthood.  Some victims may experience few impacts in the short term.  For some, problems may increase with age.  It is also increasingly understood that the impacts of trauma, such as child sexual abuse, may differ over a lifetime, emerging in response to triggers or at various transition points. 

   This section describes some of the most commonly described impacts on mental health, including:

   ·emotional issues, such as low self-esteem, shame and guilt and self-blame

   ·depression

   ·anxiety

   ·PTSD

   ·eating disorders

   ·other diagnosed disorders

   ·sleeping difficulties

   ·suicidality

   ·self-harm

   ·alcohol abuse, drug abuse and gambling problems.

   …

   3.3     Interpersonal relationships

   Survivors spoke to Commissioners about the difficulties they have experienced with interpersonal relationships, including with intimate partners, other family members and friends.  Consistent with what we were told, research associates child sexual abuse with negative impacts on social and interpersonal relationships.  Perhaps this is to be expected given that the abuse often occurs in the context of a close, personal relationship where a sense of trust and safety has been established.  Child and adolescent psychiatrist, Dr Bruce Perry, giving evidence in the Nature, cause and impact of child sexual abuse case study, explained how child sexual abuse in an institutional context makes a victim less willing to trust others, which impacts on their capacity to establish and maintain relationships:

   Everything that we learn, the entire way we heal, is all in the context of relationships, and if the very vehicle that we use to learn, to grow, to develop, to heal, to engage, to teach – all the stuff that we do as a parent – if that is corrupted by the process of sexual abuse and you can’t trust and you don’t feel safe, it makes it difficult for you to make your way through life.  If the institution – you know, these institutions are either ignoring, colluding, rejecting or even attacking you because of your disclosure, and you see this and you feel it, it makes you much, much, much less willing to trust.

   Compounding this loss of trust, the secrecy and sometimes the fear associated with hiding the abuse from others create a sense of guilt, shame and confusion that can disrupt the way the child views the world.  In adulthood, this worldview affects the way that survivors understand the motives of others and how they handle stressful life events.  This may strongly influence their relationships with others throughout their lives, especially intimate partners.

   Despite the pervasive negative effects on personal relationships, many survivors in private sessions and public hearings, told us about the importance to them of close relationships with parents, partners, siblings, children, extended family, and friends.  As discussed in Chapter 2, they drew on supportive relationships to help them cope, even if the supporters did not know about the abuse or only found out later.  Many reflected on how their relationships with others had given them meaning, and helped motivate them to seek healing and recovery.  These sources of strength are also discussed in more detail in Volume 5, Private sessions.

   3.3.1 Intimate relationships

   Difficulty in forming and maintaining intimate relationships was a pervasive impact described to us by many survivors.  Of survivors who discussed impacts in private sessions, 24.2 per cent described having relationship problems and 45.2 per cent spoke of having difficulties with trust and intimacy.  Many survivors who gave evidence during public hearings also identified these problems.  For example, in Case Study 30: The response of Turana, Winlaton and Baltara, and the Victoria Police and the Department of Health and Human Services Victoria to allegations of sexual abuse (Youth detention centres, Victoria), one survivor told us, ‘I am currently married, but I have very poor intimacy abilities.  I don’t enjoy having sex; it feels functional and awkward.  And, although my marriage is strong, my wife and I struggle with the intimacy’.

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   3.5.3 Sexual behaviour

   Research suggests that child sexual abuse can have impacts on the sexual behaviour of victims, in both childhood and adulthood.  These impacts may be developmentally specific, manifesting at certain stages of development, and sometimes subsiding or emerging later in adolescence or adulthood in a different form.  This section discusses what we heard about sexual behaviours that manifest in adolescence or adulthood, including early and unprotected sex, multiple partners and engaging in sex work.  Sexual impacts that survivors told us had affected their intimate relationships are discussed in Section 3.3.1.

   We heard that risky sexual behaviours, such as unprotected sex, can be related to other risky behaviours common among survivors of child sexual abuse.  Australian population-based research indicates that both men and women who have experienced sexual coercion are far more likely to have drunk alcohol in excess of official guidelines, to have injected drugs, and to have had a sexually transmitted infection, all of which are factors linked with high rates of unsafe or unprotected sex.  These factors can lower inhibitions and expose victims of child sexual abuse to further victimisation by impairing their defences and risk perceptions, and increasing their likelihood of being targeted by perpetrators.

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   3.8.2  Re-victimisation

   Many survivors in private sessions told us that they were re-victimised after the initial incident of sexual abuse.  We heard from victims who were sexually abused by different perpetrators at various times during their lives, in both childhood and adulthood.  Survivors also told us that they were targeted for other types of abuse following sexual abuse, such as emotional and physical abuse.  This adds weight to research suggesting that perpetrators outside the family context often target children who have previously been abused and neglected because they believe these children are less likely to report it (see Volume 2, Nature and cause).

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   3.9     Education, employment and economic security

   Many survivors told us that the child sexual abuse they experienced had long-term impacts on their education, employment and overall economic security.  Of all survivors who described impacts in private sessions, more than half (55.7 per cent) told us about negative educational and economic outcomes.

   (Footnotes omitted)