R v LLK

[2003] SASC 431

R v LLK
[2003] SASC 431

Court of Criminal Appeal:       Doyle CJ, Perry and Gray JJ

1. DOYLE CJ:          The appellant pleaded guilty in the District Court to four counts of unlawful sexual intercourse with a person of the age of 14 years.  The maximum penalty for each of offence is imprisonment for seven years.  The Judge sentenced him to imprisonment for 10 years six months, and fixed a non-parole period of seven years six months.  The appellant appeals against the sentence on the ground that it is manifestly excessive.

   Facts

2. The appellant pleaded guilty on the basis that these four counts were representative of a course of conduct over a period of about five months.  The appellant was to be sentenced only for the four offences to which he had pleaded guilty.  However, the acceptance that these offences were part of a course of conduct meant that he could not claim to be sentenced on the basis that they were isolated acts.

3. At the time of the offences the appellant was 45 years of age.  As I have said, the victim was 14 years of age.  She was the daughter of a woman with whom the appellant had been living in a domestic relationship for a period of about eight years.

4. The offences came to light when the mother found the appellant and her daughter in suspicious circumstances.  The following day the mother spoke to her daughter, and she then disclosed the offending for the first time.

5. These offences were the result of the appellant imposing his will on the victim.  In doing so he exploited her immaturity, his position in the family, and the opportunity that presented to him.  There is no reason to doubt that the victim submitted to the appellant only because of the position of authority in which he stood as a member of the family group, and because of her immaturity. The material before the Judge also indicated that another reason for the victim submitting was that she was afraid of the appellant, who had displayed violence at times.  A report from a psychologist that was placed before the Judge expressed the opinion that the appellant engaged in his offending “with minimal regard” for the wellbeing of the victim.  The psychologist said that the appellant’s “primary focus was his own gratification and egocentric focus and [he] had little empathy for his victim.”

   The sentence

6. All in all, this is a serious instance of what is always a serious offence.  As has been said often before, the court must do what it can, by imposing severe punishment, to deter men who are inclined to commit offences of this kind.  Children in a family setting are in a vulnerable situation, and this is one of the few ways in which the courts can protect them.  I refer to what I said about offending of this type in R v D (1997) 69 SASR 413 at 423 - 424 and to what Bleby J said at 430 - 431.

7. The material before the Judge indicated that the offences have had a serious effect on the victim and on her mother.  That is not surprising.  The effects on the victim are likely to be long-term, and may well prove to be debilitating.

8. There is very little that can be said by way of mitigation.  The appellant was a mature man.  The psychologist’s report indicates that he had a disturbed childhood, having spent time in correctional institutions from a very young age.  The appellant had not been able to develop stable, appropriate relationships.   His early experiences had caused him to develop “strong anti social and psychopathic personality traits.”  These are matters to be considered by way of mitigation, but they are of limited effect, bearing in mind that the appellant was a mature man, and that there was nothing impulsive about these offences.  They involve a serious and sustained breach of trust.

9. It is in the appellant’s favour that he pleaded guilty, but he did so only on the eve of trial.  The Judge made an allowance for that plea.  On the material before him the Judge was satisfied that the appellant was not genuinely contrite or remorseful.  The Judge found that while the appellant regretted the situation, that regret did not reflect remorse on his part.  That finding limits significantly the scope for a reduction in what would otherwise be the appropriate penalty.

10. As I have said, there is almost nothing by way of mitigation in the circumstances of the case.

11. The Judge took the view that each offence warranted a sentence of imprisonment for four years.  He took the view that it was appropriate that they be cumulative.  However, he recognised that a sentence of 16 years’ imprisonment would be a crushing sentence, and having regard to considerations of totality, he would have reduced that sentence to a single sentence of 12 years’ imprisonment.  On account of a plea of guilty, he reduced that sentence to one of 10 years and six months’ imprisonment.  The allowance for the plea of guilty was a generous one.

12. That process led to the Judge imposing a single sentence of imprisonment for 10 years six months, and fixing a non-parole period of seven years six months.  Both periods were directed to commence from the time when the appellant was taken into custody.

    Issues on appeal

13. The Judge took an approach to sentencing that is not the preferable approach.

14. If a single sentence is to be imposed for a number of offences, it is often helpful, before arriving at the single sentence, to consider the sentences that would be appropriate if a separate sentence were to be imposed in respect of each offence: R v Major (1998) 70 SASR 488 at 490 Doyle CJ, at 497 Olsson J. While this is often the safer approach, it is not necessary to do so, and in particular it is not an error of law not to do so: R v Gale [1999] SASC 309; (1999) 74 SASR 235 at [18] Bleby J. In the present case the Judge took the approach of considering the sentence that would have been appropriate for each offence, before arriving at a single sentence. As an alternative he could have begun by selecting a single term of imprisonment, acting on the indication that I gave in R v D that a starting point of about 10 years imprisonment was appropriate for a multiple offending of this kind: at 424. Bleby J agreed with that approach; at 430 – 431.

15. Having taken the approach the Judge did, he should have considered whether the separate sentences that he postulated would have been made to operate concurrently, at least to some extent, or whether they should be cumulative: Major at 490 Doyle CJ, at 497 Olsson J; Gale at [18] Bleby J. I am not satisfied that the Judge did this, and accordingly I must proceed on the basis that an error has been made. Although the Judge referred to the fact that if the terms were cumulative, they would amount to 16 years’ imprisonment, he gave no reasons for so deciding, and my impression is that he might have thought it unnecessary to consider this matter, having regard to his overall approach.

16. As part of the process of considering the sentence appropriate to each offence, the Judge should also have made for the appropriate allowance for the plea of guilty.  That should have been done before the Judge considered the principal of totality, and not afterwards as the Judge did: Major at 490 Doyle CJ, at 497 Olsson J; R v Place [2002] SASC 101; (2002) 81 SASR 395 at [84] – [90] Doyle CJ, Prior, Lander and Martin JJ. The totality principle arises at the final stage of the sentencing process, and should be deferred until then. This is because the question at that stage is whether an otherwise appropriate sentence should be reduced because of its effect on the offender.

17. These departures by the Judge from the preferred approach are not errors of law, nor do they necessarily result in an erroneous sentence.  However, it is desirable that the preferred approach be followed.

18. In the present case there is a risk of error.  In addition to the point already made, the reduction for the plea of guilty might have been affected by the fact that it was considered after considerations of totality had been taken into account.  The sentence should be set aside, and this Court should now sentence the appellant.

19. As I have already said, in D I suggested that in cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in the position of trust and authority, a starting point for offences involving children over 12 years of age was a sentence “of about ten years’ imprisonment” at 424. This being such a case, and the course of conduct not being lengthy, it is appropriate to use that decision as a guide.

20. I have already expressed the view that in the present case there are no significant mitigating circumstances, apart from the plea of guilty.  I would impose a single sentence of imprisonment for 11 years.  I take into account the matters canvassed by me and by Bleby J in D.  The sentence to which I referred in D was nothing more than a guide, and I regard the offending in the present case as a serious instance of its kind.

21. I would reduce the sentence to one of imprisonment for 10 years, on account of the guilty plea.  The reduction which I would make for the plea of guilty is not quite as significant as that made by the Judge.

22. I would fix a non-parole period of seven years.  In so deciding I am influenced by the absence of remorse and contrition.

    Conclusion

23. I would allow the appeal, set aside the sentence imposed by the District Court, sentence the appellant to a single sentence of imprisonment for 10 years, and fix a non-parole period of seven years.  The head sentence and the non-parole period should commence from 8 November 2001.

24. PERRY J.  I have had the benefit of perusing the reasons of the Chief Justice in this matter, in which he sets out the circumstances leading up to this appeal.

25. I agree that this is a serious case of its kind. The psychologist who provided a report, which was put before the sentencing judge, stated that the appellant had:

    “... engaged in sexual acts with his step-daughter with minimum regard for her well being ... [his] primary focus was his own gratification and egocentric focus and [he] had little empathy for his victim.”

26. The appellant pursued one ground of appeal only, namely that the sentence was manifestly excessive.

27. The case illustrates the difficulties associated with the process of sentencing for multiple offences.

28. To aggregate the penalties which each individual offence might properly attract, taken in isolation, will often produce a sentence which is out of proportion to the total offending.

29. While no doubt that result may be avoided by constructing a sentencing package in which some sentences are made cumulative and others concurrent, such a process has its limitations.

30. A preferable approach in some cases may be to take a single sentence which appears appropriate to the overall offending as a starting point, and then to make whatever discount may be appropriate, having regard to any plea of guilty or other mitigating circumstances.

31. It is clear from R v Major[1] that the utilisation of the power to impose a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 does not mean that the sentencing judge should follow one process or the other. Major is authority for the proposition that if s 18A is utilised, the single sentence imposed under s 18A will “lack a proper basis, and will not appropriately the overall criminality involved” unless the sentencing judge, during the process of considering the single sentence to be imposed, has regard to the sentences which it would have been appropriate to impose had separate sentences been fixed in respect of each offence.[2]

    [1] (1998) 70 SASR 488.

    [2]    See Major (supra) per Doyle CJ at 490.

32. That Major does not identify the only process to be followed when s 18A is utilised, is clear from the remarks of the Chief Justice, with whom Prior and Mullighan JJ agreed, in R v Symonds.[3] In that case, Doyle CJ observed:

    “In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.

    In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s 18A were not available. The power conferred by s 18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.” (emphasis added)

    [3] [1999] SASC 217.

33. An example of a case in which it was appropriate to “go directly to the single sentence to be imposed” is the decision of the Court of Criminal Appeal in R v Nylander.[4]

    [4] (Unreported) 17 June 2003, judgment No [2003] SASC 191.

34. That case involved a sentence imposed following the appellant’s conviction on four counts of armed robbery and two counts of shooting at police officers with intent to do grievous bodily harm. The sentencing judge took as a starting point with respect to each of the armed robberies a sentence of ten years imprisonment, and took the view that they should be accumulated.

35. As for the shooting offences, he considered that a penalty of eight years imprisonment for each of the two offences was appropriate, but that they should be concurrent with each other and cumulative upon the armed robbery offences. This gave a notional starting point of 48 years. The sentencing judge reduced that to a head sentence of 32 years.

36. This was reduced on appeal to a head sentence of 26 years.

37. In his reasons in that case, Bleby J, with whom Prior and Sulan JJ agreed, after referring to the passage in R v Symonds which I have just quoted, stated:

    “[81]There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process ....”

38. I do not think that in this case the approach taken by the sentencing judge created an “air of unreality”. But I agree with Doyle CJ that the process adopted by the sentencing judge was flawed, in that a deduction by reference to the principle of totality should be applied only at the end of the working out of the other elements involved in sentencing.

39. Furthermore, it would have been preferable to go directly to a single sentence for the overall offending. I regard the decision of this Court in D[5] as authority for the view that, generally speaking, in cases of multiple counts of sexual assault, the appropriate course is to adopt a single sentence at the outset of the sentencing process. Clearly, the “standard” offered in that case is predicated upon such an approach being adopted.

    [5] (1997) 69 SASR 413.

40. However, it does not follow from the fact that the approach of the sentencing judge in this case was flawed, that this Court must necessarily reconsider the sentence. There is no need to do so, if the final result is not shown to be manifestly excessive.

41. At the end of the day, I am unable to conclude that the sentence which was imposed, which was a head sentence of 10 years and 6 months with a non-parole period of 7 years and 6 months, is manifestly excessive.

42. I would dismiss the appeal.

43. Since dictating the above, I have perused a copy of the reasons of Gray J.

44. With respect to him, notwithstanding the references to “instinctive synthesis” and remarks critical of what has been described as the “two stage” approach in the decisions of the High Court in AB v The Queen,[6] and in Wong v R,[7] this Court has held that those references and comments do not apply to the sentencing procedures traditionally followed in this State.

    [6] (1999) 198 CLR 111.

    [7] (2001) 207 CLR 584.

45. The two stage approach, also described as the two tiered approach, is to take a starting point, which in cases such as this should be expressed as a single, global penalty, and then to discount it by reference to a plea of guilty or other mitigating circumstances. The Full Court (Doyle CJ, Prior, Lander and Martin JJ) in their joint judgment in Place, eschewed any suggestion that as the two stage approach is applied in this State, it can properly be described as “mathematical”. With respect to Gray J, I cannot agree that two tiered equates with mathematical.

46. The following observations in the joint judgment in Place (supra) are apposite:[8]

    “In R v Powell,[9] Perry J expressed the view that the majority view of the High Court must now be taken to mean that to arrive at a sentence by taking into account all relevant matters except the plea of guilty, and then to reduce that sentence by a specific amount on account of the plea of guilty, is an approach that embodies an error of principle. However, Prior and Besanko JJ were of a contrary view and held that the current practice of identifying the reduction for a plea of guilty should continue. For the reasons that follow, in our opinion Prior and Besanko JJ were correct.” (emphasis added)

    Gray J

    Introduction

    [8] Ibid 411.

    [9] (2001) 81 SASR 9.

47. This is an appeal against sentence.

48. The appellant was convicted on his pleas of guilty to four counts of unlawful sexual intercourse with a person of the age of 14 years.  His victim was the daughter of his partner.  It was acknowledged that the four offences were representative of a course of conduct toward the victim since she was aged 14 years.  The further history of this matter and the detailed factual circumstances of the appellant’s criminal conduct have been set out in the reasons of Doyle CJ.

    Instinctive Synthesis

49. The sentencing judge in the course of his remarks observed:

    For your offending I approach your sentence in this way.  For each count I consider that a sentence of imprisonment of four years would have been appropriate.  If those terms were to be cumulative they would total 16 years imprisonment.  I consider that I should review that having regard to the principle of totality.  Taking into account that principle I would reduce that term and impose a single sentence of 12 years imprisonment.  For your pleas of guilty I would further reduce that sentence of imprisonment to ten years and six months.  I set a nonparole period of seven years and six months imprisonment.  There are no proper reasons for suspending that sentence of imprisonment.  Your head sentence of ten years and six months and your nonparole period of seven years and six months will commence from 8 November 2001.

    These remarks suggest that the judge commenced with an objectively determined starting point for each offence followed by the making of several adjustments.

50. There is tension between the traditional approach to sentencing, described as a process of instinctive synthesis and the two-tiered or mathematical approach. The assessment of imprecise material together with reason, judgment and mercy are the hallmarks of the traditional instinctive approach.  Mathematical computations and adjustments involve accuracy and precision.  This approach has been criticised by members of the High Court[10].  In AB v The Queen[11], McHugh J observed:

    Statutory exceptions aside, the task of the judge ‘is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as the appropriate sentence’.  If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case. 

    In  Wong v R[12] Gaudron, Gummow and Hayne JJ endorsed the principle that a judge must make an instinctive synthesis of all factors which bear upon the sentence to be imposed and arrive at a single result which takes due account of them all. It was considered to be a breach of principle to adopt an approach to sentencing in which a provisional sentence is first determined and then reduced or increased by factors which mitigate or aggravate an offence. Their Honours expressly agreed with the earlier cited observations of McHugh J:

    In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender’s place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences.

    However in Cameron v R[13] the majority in the High Court did not criticise the discrete practice of a sentencing court identifying a reduction made for a plea of guilty.

    [10]  See AB v The Queen (1999) 198 CLR 111; Wong v The Queen (2001) 207 CLR 584

    [11] (1999) 198 CLR 111 at[16]

    [12] (2001) 207 CLR 584 at [76]

    [13] (2002) 209 CLR 339 – see R v Place (2002) 81 SASR 395 at [57-79], R v Smith (2003) 86 SASR 132 at [107-112] [121]

1. The dangers and risks identified by McHugh J are evident in the sentencing judge’s approach in this case.

   Course of Conduct

2. As earlier observed the sentencing judge initially considered each offence separately and then proceeded to invoke the provisions of section 18A of the Criminal Law (Sentencing) Act 1988 (SA). That section provides:

   If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.

3. As earlier observed the appellant was convicted of four counts of unlawful sexual intercourse with a person of the age of 14 years. He engaged in an ongoing course of criminal conduct. His criminal acts were of the same or a similar character. Section 10(1)(c) of the Sentencing Act had application:

   A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:

   …

   (c)     if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct; …

   The sentencing judge was obliged to consider “that course of conduct” when sentencing for each offence.  The judge does not appear to have had regard to this consideration when arriving at the sentence imposed. 

4. In R v Symonds[14], the court was concerned with a number of offences all forming part of a course of conduct.  Doyle CJ observed:

   In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.

   In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. …

   [14] [1999] SASC 217 (CCA) at [21-22]

5. In R v Elliott[15] the court addressed a sentence imposed for a number of offences of violence over a period of hours.  It was observed that:

   To adopt the approach outlined in Major in this case would involve considering each offence in isolation before considering the total sentence. The difficulty with such an approach is that each offence cannot sensibly be treated in isolation. Each offence was aggravated by the other offences. To consider any one offence necessarily involves considering all offences. Proper consideration cannot be afforded to any one offence if considered in isolation.

   I consider the approach outlined in Major even as modified in Symonds to be of no assistance in this case. It is not appropriate for a ‘one course of conduct’ case or a ‘one transaction’ case or a ‘one multi-faceted course of criminal conduct’ case. This is a case where it is appropriate and convenient ‘to go directly to the single sentence to be imposed.’

   [15] (2001) 121 A Crim R 254 at [79]

6. In R v Jason[16] the defendant committed a number of offences in the course of a continuous course of driving.  The following observations were made:

   Counsel for both parties accepted that it was appropriate for the judge to have imposed a single sentence pursuant to S18A of the Sentencing Act. The appellant submitted that the approach to sentencing identified in Major was the approach should have been followed. As has been made clear in later cases, Major does not set out a universal rule. The approach identified in Major does not assist in regard to a course of conduct case such as the present. To consider each offence in isolation does not allow a consideration of the aggravated nature of each important feature of the criminal conduct. To consider one necessarily involved considering all. They were relevantly a continuing course of conduct. Although related a number of separate criminal incursions were involved.

   One advantage of approaching offending involving a course of conduct in this way is that any risk of sentencing error associated with a two-tiered or mathematical approach to sentencing is obviated.

   [16] (2002) 36 MVR 474 at [20]. See also R v Nylander (2003) 228 LSJS 24

7. In the present case the sentencing judge should have had regard to the entire course of offending and determined the one sentence for the entirety of the appellant’s criminal conduct.  In this way the judge would have had regard to the overall criminality of the appellant.  The approach taken by the sentencing judge was fraught with difficulty.  The individual charges could not be considered in isolation.

   The Totality Principle

8. The sentencing judge made an adjustment for totality before making a reduction for the pleas of guilty.  The preferred approach as outlined in R vPlace[17] is for the court to address the issue of totality as the final consideration.

   Conclusion

   [17] (2001) 81 SASR 395 at [111]

9. The determination of an appeal against sentence by this court is governed by section 353 of the Criminal Law Consolidation Act 1935 (SA). Relevantly that section provides:

   (4) Subject to subsection (5), on an appeal against sentence, the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed, and in any other case shall dismiss the appeal.

   (5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.

10. The appellant’s offending was serious and repeated.  The offending involved a gross breach of trust toward a 14 year old child.  The victim had been subjected to extensive and ongoing suffering. The appellant placed his own sexual gratification ahead of all other considerations.  General deterrence is a paramount consideration.  The charged counts were representative of a wide course of criminal conduct.  This fact reduces the scope for leniency[18].

    [18]  R v Reiner (1974) 8 SASR 102 at 105

11. The appellant’s criminal conduct calls for a lengthy term of imprisonment. It is appropriate to involve the provisions of section 18A of the Sentencing Act and to impose the one sentence for all the offending.  The sentence proposed by Doyle CJ is the sentence warranted in law.

12. The appeal should be allowed.  The sentence imposed by the sentencing judge should be set aside.  The appellant should be sentenced to a term of imprisonment of 10 years and a non-parole period of seven years fixed.  The sentence should be backdated to commence on 8 November 2001 the date when the appellant was taken into custody.

    
    

    JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT

    1 See AB v The Queen (1999) 198 CLR 111; Wong v The Queen (2001) 207 CLR 584

    2 AB (1999) 198 CLR 111 at[13-19]

    3 (2001) 207 CLR 584

    4 (2002) 209 CLR 339 – see R v Place (2002) 81 SASR 395 at [57-79], R v Smith (2003) 86 SASR 132 at [107-112] [121]

    5 [1999] SASC 217 (CCA) at [88-89]

    6 [2001] SASC 101 (CCA)

    7 (2002) 36 MVR 474. See also R v Nylander (2003) 228 LSJS 24

    8 (2001) 81 SASR 395 at [111]

    9      R v Reiner 1974 8 SASR 102 at 105

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1. (1998) 70 SASR 488.

    2.    See Major (supra) per Doyle CJ at 490.

    3. [1999] SASC 217.

    4. (Unreported) 17 June 2003, judgment No [2003] SASC 191.

    5. (1997) 69 SASR 413.

    6. (1999) 198 CLR 111.

    7. (2001) 207 CLR 584.

    8.   Ibid 411.

    9. (2001) 81 SASR 9.
    10. See AB v The Queen (1999) 198 CLR 111; Wong v The Queen (2001) 207 CLR 584
    11. (1999) 198 CLR 111 at[16]
    12.(2001) 207 CLR 584 at [76]
    13.(2002) 209 CLR 339 – see R v Place (2002) 81 SASR 395 at [57-79], R v Smith (2003) 86 SASR 132 at [107-112] [121]
    14.[1999] SASC 217 (CCA) at [21-22]
    15. (2001) 121 A Crim R 254 at [79]
    16. (2002) 36 MVR 474 at [20]. See also R v Nylander (2003) 228 LSJS 24
    17. (2001) 81 SASR 395 at [111]
    18.  R v Reiner (1974) 8 SASR 102 at 105