R v M, AG - [2013] SASCFC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M, AG
[2013] SASCFC 39
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Peek)
24 May 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - OTHER TYPES OF ORDER
The Director of Public Prosecutions sought permission to appeal against the sentence imposed on the respondent on the ground that it was manifestly inadequate - the respondent pleaded guilty to one count of aggravated serious criminal trespass in a place of residence, five counts of rape and one count of theft - the victim was the respondent’s former partner - in breach of his bail agreement not to come into contact with the victim the respondent forced the victim into her home while she was unloading her car leaving her five month old son asleep in the car - inside the house the respondent repeatedly raped the victim anally and vaginally and forced a sledgehammer handle into her vagina - a single sentence of seven years' imprisonment with a non-parole period of four years' imprisonment was imposed - whether permission to appeal should be granted - whether the sentence was manifestly inadequate - Whether the Judge erred in refusing to grant an intervention order.
Held: The sentencing Judge appears to have overlooked the brutality and seriousness of the offending and placed too much weight on the appellant's personal circumstances - this was a case in which personal and general deterrence must take precedence - the sentence was so inadequate that no specific error needed to be identified to justify the grant of permission to appeal - permission to appeal granted and appeal allowed - appellant sentenced to 13 years' imprisonment with a non-parole period of nine years' imprisonment.
There is reason to suspect that the respondent will (without intervention) commit an act of abuse against the victim in the future - an intervention order is appropriate.
Criminal Law Consolidation Act 1935 (SA) s 340; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 19(2), s 19A(3); Summary Procedure Act 1921 (SA) s 19A; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 7, s 8, s 19, s 6, s 10, s 11, s 12, s 15, referred to.
R v Never (2003) 87 SASR 168; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Hitchens (1995) 184 LSJS 333; Heuston v R (1993) 171 LSJS 479; R v Godfrey (1993) A Crim R 318; R v Tran & Tran [2011] SASCFC 153; R v Colbert [1998] SASC 6801; R v Daly [1999] SASC 428; R v Wiskich (2000) 207 LSJS 431; R v Edwards [2011] SASC 33; DPP v Cowey (1995) 182 LSJS 345; R v Harkin (2011) 109 SASR 334, considered.

R v M, AG
[2013] SASCFC 39
Court of Criminal Appeal: Sulan, Vanstone and Peek JJ

SULAN J: This is an appeal against sentence by the Director for Public Prosecutions (SA) (“the Director”). The defendant and respondent pleaded guilty to one count of aggravated serious criminal trespass in a place of residence, five counts of rape, and one count of theft. The victim was the defendant’s former partner, M.
A Judge of the District Court fixed a single sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), of seven years’ imprisonment with a non-parole period of 4 years’ imprisonment. The Judge declined to make an intervention order preventing the defendant from seeing or contacting M.
The Director appeals on the grounds that the head sentence and non parole period are manifestly inadequate, and that the sentencing Judge erred in refusing to grant an intervention order.
Background
It is necessary to refer to the history of the defendant’s relationship with M.
When the defendant was aged 40, he began a relationship with M, who is 20 years his junior. In April 2010, M discovered that she was pregnant to the defendant. The defendant and M began living together. Their son was born on 10 December 2010. Following the birth, the relationship deteriorated.
In the early hours of 13 March 2011, the defendant and M were staying at an hotel. When M indicated she did not want to have sex with the defendant, the defendant removed M’s top and bra and dragged her by the hair out of the pair’s hotel room, locking her outside. He also damaged M’s car.
M complained to police. On 27 March 2011, the defendant was arrested in relation to his conduct on 13 March 2011. He was granted bail on the condition that he not contact M or attend her home. The following day, 28 March 2011, the defendant breached his bail agreement by contacting M by text message.
On 2 April 2011, the defendant again breached his bail agreement by banging on the windows of M’s home, and by threatening her. M complained to police. The defendant was arrested. On 4 April 2011, the defendant was granted bail in relation to his conduct on 28 March 2011 and 4 April 2011. That agreement contained the same terms as the earlier bail conditions.
On 10 April 2011, the defendant attended at M’s home to talk about their son. In doing so he committed two breaches of bail by contacting M on the telephone and attending at her home. While at M’s home, the defendant kicked in the rear wooden door.
M complained to the police, and on 13 April 2011 the defendant was arrested for the offences of 10 April 2011. Again he was released on bail. On 28 April 2011, the defendant breached his bail agreements by approaching M outside the Family Court.
On the night of 29 April 2011, M arrived at her home at about 9:30. She left her and the defendant’s five month old son in her car asleep while she unloaded the car. When M left the house to retrieve her baby from the car she realised that the defendant was there. The defendant took two telephones from her and pushed her into the house. That conduct is the subject of the offence of aggravated serious criminal trespass in a place of residence.
M had left a sledgehammer handle inside the house, for her own protection. The defendant threatened her with the handle and ordered her to remove her clothes. When she refused, he forcibly removed her clothing and pushed her to the floor. The defendant said, “I’m going to fuck you with this”, referring to the sledgehammer handle. The defendant went to the kitchen where he sprayed the handle with cooking oil. The defendant returned and there was a scuffle. The defendant threw M to the floor and forced her to perform fellatio on him. That conduct is the first count of rape. The defendant then raped M vaginally, being the second count of rape. The defendant raped M anally, the third count of rape. The defendant then forced M to the floor and forced the sledgehammer into her vagina, causing her agonising pain. That conduct is the fourth count of rape. The defendant ordered M into her bedroom and raped her vaginally again. That conduct is the fifth count of rape.
When the defendant eventually left M’s home, he took with him her two mobile phones. That conduct is the offence of theft charged.
The defendant fled to Whyalla where he was arrested on 4 May 2011.
The defendant pleaded not guilty and a trial date of 16 July 2012 was set. Just prior to the commencement of the trial, the defendant provided an alibi notice. On 16 July 2012, a pre-trial application commenced in relation to the admissibility of evidence of the relationship between M and the defendant. On 18 July 2012, the prosecution provided the defendant with evidence disproving the alibi notice. On 19 July 2012, the defendant pleaded guilty to all counts on the information.
Sentencing remarks
The sentencing Judge described the effect of the defendant’s behaviour on M. M remains terrified, even when she is in her own home. She has missed many of the joys of being a new mother. She feels insecure and finds it difficult to trust men. Her family has suffered.
At the time of sentencing, the defendant was 43 years of age. He was born and grew up in Whyalla. He was raised believing his mother was his elder sister and that his grandparents were his parents. At the age of 14 he learned that his father, whom he never knew, had raped his mother when she was 13.
The defendant has a good relationship with his mother, her other children, being his half siblings, his maternal grandparents and his wider family. He has a wide group of friends and no drug or alcohol problems. The defendant was an average student, leaving school after finishing year 11. He has been employed for about 70% of his adult working life and appears to have a good work ethic.
The defendant has three children, each to different mothers. The eldest is a son aged about 18, with whom the defendant has an indifferent relationship. The middle child is a daughter aged about 7. The defendant has liberal access to her. The defendant’s third child is his young son with M.
The Judge concluded that the defendant had some insight into his offending and realised that he simply could not accept that his relationship with M was over. The Judge accepted that the defendant bitterly regretted what he had done to M. He recognised his problem controlling his temper. The Judge also accepted that, since being in custody, the defendant has sought treatment but that none has been available to him. Mr Balfour, a clinical psychologist, provided a report to the Court in which he expressed the opinion that, with assistance, the defendant will be able to learn to regulate his feelings and become less prone to violence.
The Judge accepted evidence that, with assistance, the defendant would learn to regulate his feelings and become less prone to violence. The Judge considered the discount which the defendant should receive for his pleas of guilty. As the pleas came very late, the defendant would usually be entitled to very little credit. However, the Judge concluded that they demonstrated genuine contrition. The Judge accepted that the pleas saved M from the ordeal of giving evidence and being cross-examined. The Judge observed that the trial would not have been a short one, and that the pleas saved significant expense to the State. The Judge accepted the pleas as a genuine indication of contrition.
In fixing the defendant’s non-parole period, the sentencing Judge had regard to the defendant’s efforts to receive counselling, the opinion of Mr Balfour as to the defendant’s prospects of rehabilitation, the support of the defendant’s family, and that the defendant would have accommodation and work available to him on release.
The Judge fixed a single sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA, of seven years’ imprisonment, with a non-parole period of four years. But for the defendant’s pleas of guilty, he would have been sentenced to eight years’ imprisonment.
Crown appeals
The grant of permission to appeal should only be given in rare and exceptional circumstances to establish a matter of principle, or to maintain or establish adequate standards of sentencing for a particular offence or kinds of offences.[1]
[1] Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212, 213; R v Nemer (87 SASR 169, 172-4.
The principles relating to the grant of permission to the Director to appeal against sentence were discussed by Doyle CJ in R v Nemer:[2]
The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if 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, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[Citations omitted.]
[Underlining is mine.]
[2] (2003) 87 SASR 168, [24].
Manifestly inadequate
The Director submits that the sentence imposed was manifestly inadequate.
The Director submits that there is no sentencing standard for the offence of rape. The circumstances surrounding the offence of rape differ greatly and there is no utility in attempting to refer to a general sentencing standard. As Mullighan J said in R v Hitchens:[3]
…The Court has never established a tariff for rape and, in particular, for the worst type of rape. The circumstances of that crime and of the offender can vary enormously and it is inappropriate to try and establish a range of sentence by fixing a minimum or maximum sentence.
[3] (1995) 184 LSJS 333, 336.
Nevertheless, the Director submits the sentence in this case was so far below the appropriate sentence to justify interference by this Court.
Home invasions
A serious aspect of this offending is that it occurred in M’s own home. Section 19(2) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
(2)A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.
The sentencing Judge was required to have regard to the need to give proper effect to that policy.[4]
[4] Criminal Law (Sentencing) Act 1988 (SA), s 10(ea).
In Heuston v R,[5] the appellant had been convicted of five counts of rape. The victim was a stranger and the rapes occurred in her home. Though the appellant had convictions for assaults, he had made a real effort to rehabilitate himself. The appellant had been sentenced to 11 years’ imprisonment, with a non-parole period of seven years. King CJ (Mohr and Bollen JJ agreeing), in dismissing the appeal, said:[6]
Nevertheless, there are in this case serious aggravating features. There is the feature that the attack occurred in the victim’s own home. The security and safety of her home were violated by this attack. I think it is difficult to exaggerate the importance of this factor.
A woman attacked in her own home must be left with an enduring sense of insecurity which can never leave her, even when at home. This is illustrated in the present case by the fact that this attack has left effects of a psychological nature upon the victim.
[5] (1993) 171 LSJS 479.
[6] (1993) 171 LSJS 479-80.
In her victim impact statement, M states “there is nothing worse than not feeling safe in your own home”. She feels vulnerable and anxious. She relives the offending constantly, as it occurred in her own home. She becomes anxious even when leaving her bed at night. She cannot park her car near her shed, which is where she was confronted by the defendant. She feels compelled to move house.
Breaches of bail and the defendant’s previous conduct
The Judge referred to the defendant’s conduct leading to the commission of the crimes. He said:
You have a long history of offending, first having appeared in the Children’s Court when you were 14. But it is only fair to say that while you have many convictions, nearly all of them are related to your very irresponsible attitude to driving and to motor cars. You do not have a record for committing serious offences of violence. I point out that I have completely ignored a conviction for indecent assault in 1984 when you were a schoolboy. The circumstances of that offending do not in any way suggest that you are some sort of a sexual predator or that you were sexually violent at that age.
Sadly, your serious offending against M is offending occasioned by the poisonous nature of the relationship which you ended up having with her. There is nothing in your record to suggest that you have any history of violence against women. The crimes for which I must sentence you are far and away the most serious ones you have ever committed.
The Judge understated the defendant’s history of offending. He has numerous convictions for larceny. He has a conviction for fighting and threatening to cause harm. He has two convictions for assault. He has a conviction for escape lawful custody and resisting police. He has two convictions for breach of bond in 1995, and a conviction for breach of bond in 1998. Taken with the defendant’s many driving-related offences, this history is evidence of an entrenched attitude to the law.
The defendant was on bail as a result of three previous incidents in which M had complained to the police. On each occasion the defendant had been arrested and granted bail on condition that he not contact M or attend at her home. M had made clear to the defendant that any handovers of their son was to happen at a police station, because there could be no contact between them. M had sought Family Court orders. On four separate occasions prior to 29 April 2011, the defendant breached his bail conditions by contacting M and/or attending at her home.
The Director submits that the defendant’s previous breaches of bail are not aggravating factors of the offending but can, nevertheless, be used to reject any claim that the defendant’s conduct was an aberration, and to demonstrate that the defendant’s prospects for rehabilitation are poor.
A sentencing court can use a defendant’s course of conduct in assessing any claim for leniency. Further, it is relevant when considering personal deterrence and the prospects of rehabilitation. It can also be relevant when considering whether a defendant is genuinely contrite. Where a sentencing judge considers whether a lenient sentence is appropriate, the prior conduct of the defendant leading to the commission of the offence is relevant.
In R v Godfrey, Duggan J said:[7]
Conduct amounting to the commission of other similar offences can only provide a basis for increasing the sentence if the accused is found guilty of those offences at trial, pleads guilty to them, asks for them to be taken into account in fixing penalty, or agrees that counts in the information are to be regarded as representative offences.
This is not to say that the sentencing judge cannot take into account the context and surrounding circumstances of the crime charged. It may be that in a particular case the Court will be required to consider whether it is entitled to extend leniency on the basis that it is dealing with an isolated offence. But it cannot increase the sentence by reason of a finding on a disputed facts hearing that offences not admitted or asked to be taken into account have in fact been committed. To do this would be to deprive the accused of a proper trial on those counts.
[7] (1993) 69 A Crim R 318, 322-323.

In R v Tran & Tran, Gray J observed:[8]
When uncharged acts are of a similar character to the offence for which the defendant is to be sentenced, they may have relevance to several sentencing considerations that do not amount to matters of aggravation. For example; to militate against leniency on the basis of the offence being isolated or an aberration, to consider the importance of personal deterrence in the sentencing process; to indicate the defendant’s moral culpability; to assess the defendant’s prospects of rehabilitation; to diminish the importance of a lack of prior convictions when such offending has been occurring for some length of time; and finally, as part of the defendant’s “character and antecedents” pursuant to section 10 of the Sentencing Act. These matters are relevant to sentencing as they may indicate that a defendant has had time to reflect on his offending and yet has determined to proceed with the subject offence; has engaged in the subject offending in an organised and planned manner; intends to continue with the offending; or was motivated by greed.
These considerations are all matters relevant to the assessment of personal deterrence, prospects of rehabilitation and the protection of the community. As such, they are relevant to the determination of the appropriate sentence for the offence and for the particular defendant. They are factors that may lead to the imposition of a more severe sentence than might have otherwise been imposed. It does not follow however, that the sentence to be imposed will be increased beyond that which is proportionate to the offence for which the defendant is to be sentenced. It does not follow that the defendant is being sentenced for uncharged acts.
[8] [2011] SASCFC 153, [29]-[30].
The defendant was well aware of his bail conditions. His previous conduct demonstrated a blatant disregard for the law over an extended period. This weighs against the defendant’s prospects for rehabilitation. Similarly, it increases the importance of personal deterrence. The offending was premeditated. The defendant chose to attend at M’s house at night. He waited for her to return and immediately confronted her and assaulted her. She did nothing to provoke the attack. It was a violent attack upon a defenceless woman.
The sledgehammer handle
It is trite to say that the fact the defendant used a weapon in the offending is an aggravating feature. It is not uncommon for those who commit rape to threaten their victims.[9] The defendant threatened M with the sledgehammer handle, and told her what he was going to do with it. The threat alone would have been terrifying. Having forced M to perform fellatio on him, and having raped M vaginally and anally, the defendant carried out his threat and forced the sledgehammer into M’s vagina. Following the attack, doctors recommended to M that she be examined to assess whether there had been any internal injuries. She has been too afraid to do so. M was too distressed to tell friends or family what had happened.
[9] See R v Colbert [1998] SASC 6801; R v Daly [1999] SASC 428.
Other considerations
The fact a complainant of rape was once in a sexual relationship with the offender does not mitigate the seriousness of the offence.[10] There is a need to have particular regard to general deterrence, where the crime is premeditated and the offending occurs following the breakdown of a relationship. Martin J’s observations in R v Wiskich are apposite:[11]
The respondent’s crime was not a crime of passion in the sense that it was committed on impulse in the heat of the moment during a confrontation in which intense passions were suddenly aroused. The background circumstances preceding this crime involved the commonly encountered situation of a breakdown of a relationship arousing emotions and jealousy to the point of obsession. Unfortunately, crimes of violence are often preceded by such circumstances. Potential victims of such violence are frequently vulnerable to attack and are entitled to expect the criminal courts to impose sentences and fix non-parole periods that will act as a deterrent to others in similar situations.
[10] R v Edwards [2011] SASC 33, [15]; see DPP v Cowey (1995) 182 LSJS 345, 346.
[11] (2000) 207 LSJS 431, 460.
M was vulnerable to attack. The defendant had attended at her home on two previous occasions and had been violent. M had taken steps to protect herself from the defendant. She complained to the police on three occasions prior to the attack. For protection, she had a sledgehammer handle near the rear door of her home. The defendant ignored his bail agreements and attended at M’s home to attack her. The defendant threatened M and repeatedly raped her in the most vicious manner.
The Director submits that, by considering it appropriate to make each sentence for each rape wholly concurrent, the sentencing Judge imposed a sentence that failed to reflect an adequate punishment for each offence. It is sufficient to observe that the fact a number of counts of rape occurred within a short period of each other is relevant to ascertaining the total sentence to be imposed. As King CJ said in Heuston v R:[12]
There is also the factor that this conduct for which the appellant was sentenced involved five separate acts. True it is that they all occurred within a short space of time but, nevertheless, there were repeated acts of sexual abuse on this unfortunate lady.
[12] (1993) 171 LSJS 479, 480.
I consider that the Judge gave too much weight to his assessment that the defendant was likely to become less prone to violence over time. It may well be that the defendant will reflect upon his conduct over time. He may, with appropriate counselling, comprehend the seriousness of his conduct and the effect it has had upon his victim. These are factors to which a sentencing court is entitled to have regard. However, those factors must be considered in the background of the offending itself.
This was a vicious and brutal attack upon a defenceless woman. In my view, the Judge appears to have overlooked the brutality and seriousness of the offending and placed too much weight upon the defendant’s personal circumstances. This is a case in which personal and general deterrence must take precedence over the personal circumstances of the defendant. His conduct requires severe punishment.
In accepting the defendant’s pleas of guilty as a genuine indication of true contrition, the trial Judge overlooked that the pleas had only been entered when it became clear to the defendant that his defence of alibi could not be sustained, as there was unanswerable evidence that the alibi notice was false. Over many months, the defendant had denied his offending. It is difficult to conclude that his pleas of guilty demonstrated any genuine contrition on his part. Rather, it demonstrates his realisation that maintaining his pleas of not guilty would result in a longer sentence than he would receive if he pleaded guilty.
I am also of the view that, in fixing the non-parole period, the sentencing Judge gave too much weight to the defendant’s prospects of rehabilitation and, again, failed to give sufficient weight to the other factors to which I have referred.
Manifestly inadequate
In my view, it is unnecessary to identify a specific error by the sentencing Judge. In light of the foregoing considerations, the sentence imposed was so manifestly inadequate as to bring the administration of justice into disrepute. The inadequate sentence is sufficient to demonstrate error justifying the grant of permission to appeal.
Resentencing
Section 340 of the Criminal Law Consolidation Act 1935 (SA), as amended, provides:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must –
(a) Impose the sentence that should have been imposed in the first instance; and
(b) Order that the sentence –
(i)will be taken to have come into effect on a date before the date of the order;
or
(ii)will take effect on a date on or after the date of the order.
In R v Harkin,[13] in the joint judgment of Gray and Sulan JJ, they observed that the effect of s 340 is to remove from consideration any rule of law enabling a court to impose, when sentencing, a sentence other than the sentence which the court thinks ought to have been imposed at first instance.
[13] (2011) 109 SASR 334, 341.
Prior to the enactment of s 340, the Court of Criminal Appeal, when resentencing a defendant subject to a Crown appeal, was entitled to impose a sentence lower than the Court considered would be appropriate if passing sentence at first instance, the appellate court having regard to the fact that a defendant was being sentenced a second time, the defendant having anticipated that he would be required to serve only the sentence imposed upon the defendant at first instance. That demonstration of mercy or leniency open to the Court, referred to as the principle of double jeopardy, has been removed by the enactment of s 340. Further, this is not a case which justifies a merciful approach.
In resentencing, I have had regard to the seriousness of the offending and the need for general and personal deterrence. I have had regard to M’s victim impact statement. I have had regard to the personal circumstances of the defendant.
As I have observed, these crimes were extremely serious. They were premeditated, they were extremely violent and they were in total disregard of previous court orders and bail conditions agreed to by the defendant. There are very few mitigating factors. I would impose one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). This is a case where all the offences occurred as part of one violent incident.
I consider an appropriate starting point is 14 years’ imprisonment. I would reduce the head sentence to 13 years’ imprisonment, on account of the defendant’s plea of guilty. I would fix a non-parole period of nine years’ imprisonment.
Intervention order
Section 19A(3) of the Sentencing Act requires the Court to consider whether a restraining order under the Summary Procedure Act 1921 (SA), or an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) should be issued. Sections 19A(1), (1a), (3) and (4) provide:
(1) A court may, on finding a person guilty of an offence or on sentencing a person for an offence, exercise the powers of the Magistrates Court to issue against the defendant a restraining order under the Summary Procedure Act 1921 or an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 as if a complaint or application had been made under that Act against the defendant in relation to the matters alleged in the proceedings for the offence.
(1a) Before issuing an order under this section the court must consider whether, if the whereabouts of the person for whose benefit the order would be issued are not known to the defendant, the issuing of the order would be counterproductive.
[..]
(3) A court must, on finding a person guilty of a sexual offence or on sentencing a person for a sexual offence—
(a)     consider whether or not an order should be issued under this section; and

(b)     if the court determines that an order should not be issued under this section— give reasons for that determination (and the determination is subject to appeal as if it were an order of the court made on sentence).
(4) In this section—
sexual offence means—
(a)     rape; or
(b)     compelled sexual manipulation; or
(c)     indecent assault; or
(d)     any offence involving unlawful sexual intercourse or an act of gross
indecency; or
(e)     incest; or
(f)     any offence involving sexual exploitation or abuse of a child, or exploitation
of a child as an object of prurient interest; or
(g)     any attempt to commit, or assault with intent to commit, any of the foregoing offences.
By s 19A(1), a sentencing court may exercise the powers conferred on the Magistrates Court by the Summary Procedure Act 1921 (SA) or the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The Summary Procedure Act 1921 (SA) confers powers to make paedophile restraining orders,[14] and child protection restraining orders,[15] which are not relevant in this case.
[14] See Summary Procedure Act 1921 (SA), s 99AA.
[15] See Summary Procedure Act 1921 (SA), s 99AAC.
However, s 7(1)(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) provides that any person against whom it is suspected the defendant will commit an act of abuse may be protected by an order. Section 8 defines abuse to include physical, sexual, emotional or economic abuse. M is a person for whose protection an intervention order may be issued.
Section 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) provides the grounds for issuing an order:
6—Grounds for issuing intervention order
There are grounds for issuing an intervention order against a person (the defendant)
if—
(a) it is reasonable to suspect that the defendant will, without intervention,
commit an act of abuse against a person; and
(b) the issuing of the order is appropriate in the circumstances.
Section 10 provides the matters which must be taken into account in determining whether it is appropriate to issue an intervention order, and in determining the terms of an order. In particular, s 10(1) is relevant:
10—Principles for intervention against abuse
(1) The following must be recognised and taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:
(a)abuse occurs in all areas of society, regardless of socio-economic status, health, age, culture, gender, sexuality, ability, ethnicity and religion;
(b)abuse may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour;
(c)it is of primary importance to prevent abuse and to prevent children from being exposed to the effects of abuse;
(d)as far as is practicable, intervention should be designed—
(i)to encourage defendants who it is suspected will, without intervention, commit abuse to accept responsibility and take steps to avoid committing abuse; and
(ii)to minimise disruption to protected persons and any child living with a protected person and to maintain social connections and support for protected persons; and
(iii)to ensure continuity and stability in the care of any child living with a protected person; and
(iv)to allow education, training and employment of a protected person and any child living with a protected person, and arrangements for the care of such a child, to continue without interruption; and
(v)if the defendant is a child—
(A) to ensure the child has appropriate accommodation, care and supervision; and
(B) to ensure the child has access to appropriate educational and health services; and
(C) (C) to allow the education, training and employment of the child to continue without interruption.
Sections 11, 12 and 15 of the Act are as follows:
11—Ongoing effect of intervention order
(1)    An intervention order is ongoing and continues in force (subject to any variation or substitution of the order under this Act) until it is revoked.
(2)    Consequently, an issuing authority may not fix a date for the expiry of an intervention order or otherwise limit the duration of an intervention order.
12—Terms of intervention order—general
(1)    An intervention order may do any 1 or more of the following:
(a)prohibit the defendant from being on premises at which a protected person resides or works;
(b)prohibit the defendant from being on specified premises frequented by a protected person;
(c)prohibit the defendant from being in a specified locality;
(d)prohibit the defendant from approaching within a specified distance of a protected person;
(e)prohibit the defendant from contacting, harassing, threatening or intimidating a protected person or any other person at a place where the protected person resides or works;
(f)prohibit the defendant from damaging specified property;
(g)prohibit the defendant from taking possession of specified personal property reasonably needed by a protected person;
(h)prohibit the defendant from causing or allowing another person to engage in the conduct referred to in any of paragraphs (e) to (g);
(i)require the defendant to surrender specified weapons or articles that have been used, or that there is some reason to believe might be used, by the defendant to commit an act of abuse against a protected person;
(j)require the defendant to return specified personal property to a protected person;
(k)require the defendant to allow a protected person to recover or have access to or make use of specified personal property and to allow the person to be accompanied by a police officer or other specified person while doing so;
(l)impose any other requirement on the defendant to take, or to refrain from taking, specified action.
(2)    An intervention order may specify—
(a)conditions under which a prohibition imposed by the order does not apply; and
(b)conditions that must be complied with in relation to a requirement imposed by the order.
(3)    If an intervention order is designed to prevent a form of abuse involving the use or threatened use of particular weapons or articles, the terms of the order should, as far as is practicable, include surrender of the weapons or articles or other measures designed to minimise the risk of the defendant using or threatening to use the weapons or articles to commit an act of abuse against the protected person.
(4)    If an interim intervention order requires the surrender of specified weapons or articles, the order must provide for their safe keeping until the determination of proceedings under section 23, but otherwise an intervention order may specify how surrendered weapons or articles are to be dealt with or disposed of.
(5)    An intervention order may be issued against the defendant in relation to premise or property despite the fact that the defendant has a legal or equitable interest in the premises or property.
(6)    If an intervention order prohibits the defendant from being on premises at which a
(7)    protected person resides—
(c)the protected person may, despite any other Act or law, change any external door or window lock of the premises (and, if the premises are rented and a lock is so changed, the protected person must give a key to the lock to the landlord, except if the defendant is the landlord); and
(d)if the defendant is a party to a tenancy agreement for the premises—the defendant may not, despite any other Act or law, take any action to terminate the tenancy agreement before the determination of the proceedings under section 23.
...
15—Terms of intervention order—date after which defendant may apply for variation or revocation
(1)    The Court may, when issuing or varying an intervention order (other than an interim intervention order), include a term fixing a date after which the defendant may apply for variation (or further variation) or revocation of the order.
(2)    The date must fall at least 12 months after the date of issue or variation of the order.
(3)    If the Court does not include in an intervention order (other than an interim intervention order) a term under subsection (1), the intervention order will be taken to include a term fixing the date falling 12 months after the date of issue or variation of the order as the date after which the defendant may apply for variation (or further variation) or revocation of the order.

The effect of ss 11 and 15 are that unless the court imposing the order fixes a date upon which a defendant may apply for variation or revocation of the order, a defendant may apply for revocation of the order at any time after 12 months has elapsed after the imposition of the order.
In my view, there is reason to suspect that the defendant will, without intervention, commit an act of abuse against M in the future. An intervention order is appropriate. M currently has custody of her and the defendant’s child. The defendant’s right to contact his child will not be infringed by an appropriately drafted order. The grounds for an order under s 6 are established.
I note that s 19A(1a) of the Criminal Law (Sentencing) Act 1988 (SA) and s 19(3) of the Intervention orders (Prevention of Abuse) Act 2009 (SA) require the Court to consider whether, where the whereabouts of the person who is to benefit from the order is not known to the defendant, an order would be counterproductive. Section 12(1)(A) empowers the Court to make an order preventing a defendant from being on the premises where the protected person resides or works, without specifying the premises.
The Director submits that the Court should set a period, in which the defendant cannot apply for a revocation or variation of the order, of five years. This is unnecessary. The effect of ss 11 and 15 of the Act is that the order will continue until such time as it is revoked. The defendant cannot make an application for revocation or variation for 12 months. Once that period is passed, the defendant will be free to make an application, although the order remains until the application is granted. Though it is a matter for a subsequent court, these reasons and the seriousness of the defendant’s offending should weigh heavily on any consideration of a variation or revocation application.
Conclusion
I would grant the Director permission to appeal. I would allow the appeal.
The sentence imposed in the District Court is set aside. In substitution, the defendant is sentenced to 13 years’ imprisonment, with a non-parole period of nine years’ imprisonment, the sentence and non-parole period to commence on 3 May 2011, being the date upon which the respondent was taken into custody.
I would make an intervention order in the following terms:
1the defendant is prohibited from being on premises at which [M] resides or works;
2 the defendant is prohibited from approaching within 50 metres of [M];
3the defendant is prohibited from directly or indirectly contacting, harassing, threatening or intimidating [M] for any reason including attempting to contact or see [D].
4condition 3 is subject to the proviso that the defendant may contact M through a legal practitioner in relation to Family Court proceedings.
5any firearm in the possession of the defendant and any licence or permit held by the defendant authorising possession of a firearm must be surrendered to the Registrar of Firearms; and
6while this intervention order remains in force, and licence or permit authorising the defendant to possess a firearm is suspended, the defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm, and the defendant is prohibited from possessing a firearm in the course of his employment.
VANSTONE J: I agree with the orders proposed by Sulan J and with the reasons he has written.
PEEK J: I agree with the orders proposed by Sulan J and with his reasons.