R v Lomas & Symmons - [2005] SASC 435

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LOMAS & SYMMONS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice Vanstone)
23 November 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Crown appeal against sentence - two co-offenders - offences of unlawful sexual intercourse with person under 17 years - each offender released on bond without conviction - whether sentences manifestly inadequate - discussion of sentencing considerations - held, sentences merciful but not inadequate - application for leave refused.
Criminal Law Consolidation Act 1935 s 49(3); Criminal Law (Sentencing) Act 1988 s 39, referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Everett v The Queen (1994) 181 CLR 295; R v Angus [2004] SASC 317; R v D (1997) 69 SASR 413; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212, considered.

R v LOMAS & SYMMONS
[2005] SASC 435
Court of Criminal Appeal: Debelle, Besanko and Vanstone JJ

DEBELLE J. The Director of Public Prosecutions applies for leave to appeal against the penalties imposed by a Judge of the District Court.
The respondents pleaded guilty in the District Court to the crime of unlawful sexual intercourse with a girl under the age of 17 years contrary to s 49(3) of the Criminal Law Consolidation Act 1935. The offending of both respondents concerned the same girl who was then aged 15 years and 10 months.
The offending of each respondent differed. In the case of the respondent Lomas, the offending consisted of causing the girl to perform the act of fellatio upon him. In the case of the respondent Symmons, the offending consisted of two counts, one of digital penetration of the girl’s vagina and the other of penile vaginal intercourse.
The judge was satisfied that there was good reason to exercise the power in s 39 of the Criminal Law (Sentencing) Act 1988 not to record a conviction and to give each respondent a chance to rehabilitate himself. Without recording a conviction, he discharged each respondent on each entering into a separate bond in the sum of $500 to be of good behaviour for a period of 12 months. It was a term of the bond that if each respondent should fail to comply with it, he would be brought back to the court for sentencing. As Symmons had committed two offences, there was a separate bond in respect of each offence.
The offending occurred when both the complainant and the respondents were affected by liquor. The complainant and a girlfriend had been shopping at Glenelg in the afternoon of Monday, 4 October 2004. At about 5.00 pm they decided to go home. They went to the tram stop in Moseley Square which is close to the Ramada Grand Hotel. They began talking to some young men in the hotel and decided to go into the bar of that hotel instead of going home. Those young men were not connected with the respondents. The complainant and her girlfriend began drinking. They remained at the hotel until midnight, a period of about seven hours. The complainant drank liquor during this time. The complainant and her friend met other young men who bought drinks for them. These young men were not associated with the respondents. On her own assessment the complainant was fairly drunk by about 10.30 pm. She was subject to a curfew and, despite three calls from the place where she was residing, she did not answer any one of them.
The complainant and her friend were dancing with young men from time to time. As the complainant said, she went up to young men and introduced herself. The complainant was kissing a young man she had met that night. Later the complainant agreed to leave the hotel with another young man but, after a short time, she returned to the hotel.
Shortly after midnight, the complainant began to talk with the respondents. They asked if she and her friend wanted to walk along the beach. She went and found her friend in the hotel but her friend refused to do so and suggested to the complainant that she should not agree. The complainant returned to the respondents and agreed to go with them. They left the hotel and walked towards the jetty. At the suggestion of one of the respondents, all three walked down to the beach. Once on the beach the respondents walked under the jetty. They asked the complainant to join them. One of the respondents asked the complainant to take her clothes off. She did so. In her first statement to the police the complainant said that she removed all of her clothes. In a later statement, she said that she removed all of her clothes but for her bra, which the respondent Lomas removed.
It is unnecessary to recite all of the details of what occurred. Lomas began kissing the complainant and fondling her breasts. Both men removed their clothes. At one stage Lomas put his penis into the complainant’s mouth. He stopped when she indicated her unwillingness. It seems that at that stage Lomas dressed and went back to the hotel.
Symmons put one or more fingers into the complainant’s vagina and then inserted his penis into her vagina. The complainant’s mobile telephone rang and the complainant answered it. At the complainant’s request, Symmons ceased the vaginal intercourse. Both the complainant and the respondent dressed and returned to the hotel together.
Two security guards saw the complainant and the respondents go down to the beach and saw that something was happening under the jetty. They both told police that they did not see any sign of distress or hear any cry for assistance. They saw the complainant return to the hotel to rejoin her friends and others. They observed her socialising with them quite happily as she had been before she had gone to the beach. At some stage the complainant located her friend and told her what had happened.
Although the complainant was two months short of her 16^th birthday, each of the respondents believed that she was about the same age as themselves. It did not occur to them that the complainant was less than 17 years old. At the time the respondent Lomas was aged 19 years and the respondent Symmons was aged 18 years. The respondents were not alone in believing that the complainant and her girlfriend were at least 17 years old. The security officers, who had seen the complainant during the evening, estimated her age to be between 18 and 20 years. The manager of the bar in the hotel had shouted the two girls drinks earlier that evening. It is reasonable to infer that, as manager, he would have believed that each of the girls was at least 18 years of age. The sentencing judge concluded that, in all the circumstances, it could not be said that it was unreasonable for them to have believed that the complainant and her friend were about the same age as themselves. Ms Davison, counsel for the Director of Public Prosecutions, does not question that finding.
This was a case where it was reasonable for the respondents to believe that the complainant was over the age of 17 years. The complainant went freely with the respondents to the beach. The respondents understood the fact that the complainant had removed her clothes to be an indication of a willingness on her part to participate in sexual activity. When the complainant asked each respondent not to engage in any particular form of sexual contact, each respondent promptly stopped what he was doing. It seems that the whole incident was over in a relatively short time.
Although the complainant says she was an unwilling participant, there is nothing to indicate that she made that clear to the respondents. She removed her clothing at their request. There was no hint or suggestion that she was compelled to do so or that she felt that she was under any compulsion to do so.
The complainant states that the experience has proved traumatic for her and left her feeling sad. She has had some significant upheavals in her life which have resulted in a great deal of insecurity.
Lomas is aged 20. He is the third year of an apprenticeship of four years as an electrician. He has no prior convictions. A number of references were supplied to the sentencing judge on his behalf. They demonstrate that he has shown leadership as a footballer and is doing extremely well in his apprenticeship. He is respected by all of those who know him. The sentencing judge found that what he did was out of character and there is no appeal against that finding.
Symmons was aged 19 at the time of sentencing. He too has no relevant prior convictions. He is in the first year of his apprenticeship as a plumber and is doing very well in that occupation. His employer regards him as a hard worker and says that he is very conscientious. There is every reason to expect that he will succeed in that career. A number of references were supplied on his behalf. He is highly thought of by all of those who know him. Again, the sentencing judge found that this incident was entirely out of character and there is no appeal against that finding.
When sentencing the respondents the judge had regard to a number of facts, namely:
1.That it was not unreasonable for each of the respondents to believe that the complainant was about their own age and not some two to three years younger.
2.That each believed that the complainant was willing to engage in sexual intercourse. It is not disputed by the Director that, although the complainant did not wish to take part in sexual intercourse, that would have been unclear to the respondents and there is no suggestion that either of them were reckless in believing that she consented that she was willing to engage in sexual intercourse.
3.This was not a case of an older man taking advantage of a young woman under the age of 17. All three of them were affected by alcohol.
4.As soon as the complainant made it clear to each that she was unwilling to continue in the sexual activity, each of the respondents stopped.
The judge also had regard to the fact that each of the respondents was young, of good character and with no prior convictions. It was unlikely that either of them would re‑offend. Each had pleaded guilty to the offences with which they were charged as soon as possible for them to do so, that is to say, when the charges of rape were not prosecuted.
The principles relating to an application by the prosecution for leave to appeal against sentence on the ground that it is inadequate are well established. Leave to appeal will be granted only where it is necessary for the court to establish some matter of principle, to correct an error of principle or to correct a manifestly inadequate sentence which is so significant as to amount to an error in point of principle: Everett v The Queen (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ. It is well to bear in mind the well settled principles identified by King CJ in R v Osenkowski (1982) 30 SASR 212 at 212 ‑ 213:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must be always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
This Court will not, therefore, correct a sentence merely because it is too low. It will only intervene where the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice: R v Nemer (2003) 87 SASR 168 per Doyle CJ at 172. In short, leave to appeal will be granted only in rare and exceptional circumstances: Everett v The Queen (supra) at 305.
Ms Davison could not point to any error of principle in the manner in which the sentencing judge determined the sentence and I am satisfied that there is none. It is clear that the sentencing judge proceeded on the footing that this was a serious offence. There is nothing about the facts of this case which requires the Court to establish a standard for other cases. The facts and circumstances in which this crime may be committed vary so enormously that it is quite unrealistic to establish a general standard of punishment except for a particular type of offending, such as in the case of those guilty of sexual misconduct with young children. R v D (1997) 69 SASR 413 is an example. This case exemplifies how varied will be the circumstances which constitute this crime.
The substance of the complaint by counsel for the prosecution was that to release both respondents without conviction on a bond to be of good behaviour was manifestly inadequate. The prosecution acknowledged that there will be instances when it is appropriate not to record a conviction but submitted that this case is a long way removed from them. I do not agree.
When all the facts relating to this offending are considered it is apparent they are quite removed from the usual kind of offending. This was an occasion when three young people, all quite drunk, left a hotel and went to the beach and there engaged in sexual conduct of an inappropriate kind. The incident reflects very poorly on all three. The conduct of each of them was irresponsible and plainly induced by their drunkenness. The complainant willingly removed her clothing when asked to do so. In this way she sent a signal to the young men which they misunderstood. She acted in a way which caused them to misunderstand her intentions. It was not unreasonable for these young men to believe that the complainant was about their own age, when her consent would render their conduct lawful. Neither of the respondents was reckless in believing that the complainant was willing to participate in sexual conduct. It is to the credit of each that once the complainant expressed her unwillingness to engage in a particular act of sexual intercourse, each desisted. The respondents’ offending is on the lower end of the scale for this crime.
It was plainly open for the judge to conclude that the respondents had acted because of their mistaken belief as to the complainant’s age and her intentions. The prosecution expressly said to the sentencing judge that it did not dispute the respondents’ contention that they believed that the complainant was about the same age as themselves. There was other evidence which supported their belief. In the light of these facts when combined with the good character of the respondents, their employment history and the unlikelihood of either re‑offending, it was open to the sentencing judge to act mercifully. A range of options was available. The orders made by the sentencing judge were within the range of those options. It was open to him to conclude that there was good reason for not recording a conviction.
Due regard must be had to the fact that these were young men who are in full‑time employment. Each is of good character. There will be circumstances when the interest of the community in being protected from crime is best served by permitting an offender to continue to make an honest living and giving him an opportunity to demonstrate that his potential to be a useful and reliable member of the community can be realised. If in fact these respondents do realise that potential, the interests of the community will be vindicated. Equally, if either of these young men should offend, the time for leniency will have passed and he will have to appear before the court to be punished for this offending.
This is not, therefore, a case which requires the intervention of this Court on a prosecution appeal.
I would therefore refuse leave to appeal against sentence.
BESANKO J. The Director of Public Prosecutions seeks leave to appeal against orders made by a judge of the District Court.
The essential facts surrounding the offending are set out in the judgment of Vanstone J.
The respondent Lomas pleaded guilty at the first available opportunity to one count of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (“CLCA”). The penalty under that section is imprisonment for a term not exceeding seven years. At the time of the offending, the respondent Lomas was 19 years of age and the victim was seven weeks short of her sixteenth birthday. The sentencing judge exercised the power in s 39 of the Criminal Law (Sentencing) Act 1988 (“CLSA”) and discharged the respondent Lomas without recording a conviction and without imposing a penalty, on condition that he enter into a bond to be of good behaviour for 12 months and appear before the court for sentence on the offence if he disobeys any of the conditions of the bond. The judge found that there was good reason within s 39 of the CLSA to adopt that course.
The respondent Symmons pleaded guilty at the first available opportunity to two counts of unlawful sexual intercourse contrary to s 49(3) of the CLCA. The victim was the same person, and the offending occurred at more or less the same time as the offending by the respondent Lomas. The respondent Symmons was 18 years of age at the time of the offending. The sentencing judge took a similar approach to that which he took in the matter involving the respondent Lomas, although, because there were two offences, he imposed two bonds to run concurrently for a period of 12 months each.
Before the sentencing judge, counsel for each respondent asked the judge to exercise the power in s 39 of the CLSA. The Director asked the judge to record convictions and impose sentences of imprisonment. However, the Director accepted that the suspension of the terms of imprisonment was within the range of appropriate penalties.
On the application for leave to appeal, the Director does not challenge any of the findings of fact made by the sentencing judge. Nor does the Director submit that s 39 of the CLSA may never be used in the case of the offence of unlawful sexual intercourse. He does submit that the offence of unlawful sexual intercourse is a serious one, and the use of s 39 will be rare.
The principles relevant to an appeal against sentence by the prosecution are well established. Leave to appeal will be granted only in rare and exceptional cases: Everett v The Queen (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 299; Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at 340 - 341; R v Osenkowski (1982) 30 SASR 212 per King CJ at 212 – 213; R v Nemer [2003] SASC 375; (2003) 87 SASR 167 per Doyle CJ at [23] – [24]; R v Angus [2004] SASC 317 per Doyle CJ at [33] – [37]. It is not necessary for me to set out the relevant principles. They are not in dispute on this application.
The Director submits that, in the circumstances of this case, the sentence is so manifestly inadequate that there is an error of principle, or such that to allow it to stand would shake public confidence in the administration of justice. In submissions, the Director emphasised the seriousness of the offence, the fact that the two men offended at or about the same time, the fact that alcohol was involved and the fact that the victim was not consenting.

In view of these submissions it is necessary to look carefully at the findings of fact made by the sentencing judge. As I have said, none of them are challenged by the Director.
The judge sentenced the respondents on the following basis:
1.The offending by the respondent Lomas lasted a couple of seconds and he stopped when the victim asked him to do so. It is unclear whether the offending by the respondent Symmons was interrupted because the victim told him to stop or because her mobile telephone rang. Whatever it was, the victim indicated that she did not want the respondent Symmons to continue and he stopped.
2.Although the victim was not consenting to what was happening, the respondents did not know that and were not reckless as to whether she was consenting. In fact, the rape charges were withdrawn and the judge sentenced the respondents on the basis that they each had a positive belief that she was a willing participant in what occurred.
3.It was not unreasonable for the respondents to believe that the victim was about the same age as they were. At the time, the respondent Lomas was 19 years of age and the respondent Symmons was 18 years of age. The judge said that the evidence suggested that to an observer the victim and the respondents would have looked about the same age.
In the context of this finding, I pause at this point to note that, had the victim been seven weeks older, the respondents may not have been guilty of any offence (see s 48(4) of the CLCA).
4.There is no suggestion that the respondents gave the victim alcohol with a view to taking advantage of her. The sentencing judge found that, to the extent alcohol was involved, all three persons were in an equally vulnerable state.
Of course, these four matters are irrelevant to whether or not the offences were committed, but they are relevant to the question of the appropriate penalty and the Director did not contend otherwise.
In addition to the above matters, the judge had evidence that the respondent Lomas had no prior convictions, had shown leadership as a footballer and was doing extremely well in an apprenticeship. The judge had before him character references that enabled him to conclude that the respondent Lomas was well‑respected by those who knew him and that the offending was out of character.
The judge also had before him material relating to the respondent Symmons, including character references, that enabled him to conclude that he was highly thought of by those who knew him. He had shown dedication and skill in his football. He was doing well in the first year of his apprenticeship as a plumber and was regarded by his employer as a conscientious and hard worker. There was every reason to expect that he will succeed in his chosen field, and it was also clear in his case that the offending was out of character. The respondent Symmons had one prior conviction for a relatively minor offence, which the Director correctly conceded was not relevant to the sentencing process.
The matters I have identified were all clearly relevant to the sentencing process. In addition, the judge in his sentencing remarks referred to the fact that the offences were serious, and to the effects of the offending on the victim. In my opinion, the fact that the offending involved two men offending at more or less the same time is an aggravating feature.
The judge took a merciful view, and another judge may well have taken the view that the offending warranted the additional penalty of the recording of convictions, and perhaps the imposition of terms of imprisonment, which might then have been suspended. However, nothing was put on part of the Director which has satisfied me that having regard to the relevant principles this is one of those rare and exceptional cases in which leave to appeal should be granted. I refuse leave to appeal.
VANSTONE J. Each of the respondents pleaded guilty to unlawful sexual intercourse of a girl of the age of 15 years and 10 months. In the case of the respondent Symmons, there were two such counts. The entry of those pleas of guilty, and their acceptance by the prosecution, operated as an acquittal of charges of rape in respect of the same acts of intercourse. In the course of submissions upon sentence, counsel for the Director of Public Prosecutions (“the Director”) put that the seriousness of the offences was such that a sentence of imprisonment should be imposed, although suspension of it was a matter of discretion. In fact the sentencing Judge discharged both respondents without recording a conviction, upon condition that each enter bonds to be of good behaviour for 12 months, a term of the bonds being that in the event of breach they would appear before the court for sentence. The Director now appeals against that disposition.
The events leading to the offences commenced at the Ramada Grand Hotel at Glenelg. The respondents were there, with others, celebrating a football win. The complainant, who was not previously known to the respondents, attended the hotel in company with a girlfriend. All of them were drinking liquor and apparently enjoying themselves over an extended period. At some stage the complainant approached the respondent Lomas and spoke with him. Later on she happily accompanied both respondents to an area of beach under the jetty. There, at the request of one or other of the respondents she undressed and the acts of intercourse occurred. It appears that the Judge found that the act of oral intercourse with the respondent Lomas occurred first and ceased because of the complainant’s wish. The respondent Lomas then left the area, whereupon the two acts with Symmons took place. During that period the complainant’s mobile telephone rang and she had a conversation with the caller. Soon afterwards they left the beach together and returned to the hotel.
There are two aspects of the factual basis for sentence worthy of mention. First, the prosecution accepted that the respondents were entitled to, and did, believe that the complainant was at least 17 years of age. It is relevant to note that had the complainant attained the age of 16 years, such a belief would have provided a defence under s 49(4) Criminal Law Consolidation Act, 1935. The second matter related to the complainant’s attitude to having intercourse with these young men. As I mentioned, both respondents were, until their pleas, facing rape charges. In her various statements the complainant had maintained that she was not consenting to any intercourse with either of them. The decision not to pursue the rape charges was likely to have been referable to certain weaknesses in the case of rape evident on the papers. For example, when the complainant’s mobile telephone rang towards the end of the incident, she spoke to the caller and exhibited no sign of any distress. Furthermore, when she returned to the hotel with the respondent Lomas, her girlfriend detected nothing out of place with her and said she “looked cool”. It seems that her distress at what she said had happened did not manifest itself until some little time after her return from the beach and after she failed to secure transport from the hotel. Nonetheless, the prosecution maintained that the complainant did not consent to any act of intercourse. The respondent’s position was that while each man believed the girl to be consenting to the acts of intercourse, it was accepted that there was no consent. That was a circumstance of aggravation.
The difficulty with the agreed basis of pleas put to the sentencing Judge was that it contradicted not only the statements of the telephone caller and the complainant’s girlfriend, but also the clear statements of the complainant to the effect that she made her lack of consent plain to both respondents. In the circumstances, the sentencing Judge was placed in a difficult position. The Judge was alive to the difficulty, because he closely questioned counsel for each party about their position. But, in my view, if the pleas were to proceed on the new factual basis proposed, then the Judge should have been explicitly informed that certain of the declarations before him were rendered redundant and they should have been replaced by a written set of agreed facts.
It remains for this Court to consider the Director’s application on the sentencing basis which was presented to the Judge.
At the time of the incident the respondent Lomas was 19 and the respondent Symmons was 18 years of age. Both were young men of good character, both undertaking apprenticeships and both showing promise and skill in professional football. Character references were presented in respect of each man. Those considerations, combined with the nature of the offences and the proximity in age of all three persons, gave scope for a merciful approach.
Upon the appeal counsel for the Director made it clear that there was no complaint arising from the imposition of a non-custodial penalty. The essence of the complaint was that no conviction was recorded and that, rather than having received a suspended sentence, the respondents were required to appear for sentence only if they breached the terms of their bonds.
I consider that the difference between the disposition arrived at and that sought by the Director is, in the context of a prosecution appeal, so narrow as to render the appeal insubstantial. I do not think that the proper purposes of prosecution appeals extend to a case such as this, where it is not suggested that the Judge has made any explicit error and where the outcome sought is not markedly different from that already effected. In my view, the nature of these offences, considered against the matters in mitigation to which I have referred, provided a proper basis for the enlivening of the discretion which Parliament has given and which the sentencing Judge exercised. It would be wrong for this Court to interfere with that exercise of discretion.
For these reasons I would refuse leave to appeal.