R v M, G

[2016] SASCFC 116

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v M, G

[2016] SASCFC 116

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Hinton)

4 October 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

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 - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

Appeal against sentence.

The appellant pleaded guilty more than 12 weeks after arraignment to one count of aggravated indecent assault and one count of procuring an act of gross indecency. He was sentenced by a Judge of the District Court to imprisonment for three years, seven months and one week (reduced from a starting point of four years on account of his pleas), with a non-parole period of 18 months.

The appellant appealed against the sentence on the grounds that the head sentence and non-parole period were manifestly excessive and the Judge erred in not suspending the sentence of imprisonment.

On the appeal, the respondent conceded that the Judge erred in identifying the maximum penalty for procuring an act of gross indecency as being imprisonment for 10 years, when in fact for a first offence it was three years. The respondent conceded that the appeal should be allowed and the appellant should be resentenced.

Held per Nicholson J (Blue and Hinton JJ agreeing) allowing the appeal:

1.       The sentence imposed by the District Court is set aside.

2.       The appellant is sentenced to a single penalty of imprisonment for two years with a non-parole period of nine months.

3.       The intervention order made by the District Court is revoked and in its place is substituted an intervention order in identical terms.

Held per Hinton J (Blue J agreeing):

1.       Good reason to suspend the sentence of imprisonment does not exist.

Held per Nicholson J:

1.       The term of imprisonment should be suspended upon the appellant entering into a bond to be of good behaviour for two years. The terms of the bond should include that the appellant be subject to supervision by an assigned Community Corrections Officer for two years and that the appellant undertake such counselling and courses directed at rehabilitation of child sex offenders as his assigned Community Corrections Officer requires.

Criminal Law Consolidation Act 1935 (SA) ss 56, 58(1) ; Criminal Law (Sentencing) Act 1988 (SA) ss 7, 7A, 10(1), 10(2)(c), 18A, 19A, 38(1); Crimes Act 1914 (Cth) s 16A(2); District Court Criminal Rules 2014  (SA) r 57(2), (3); District Court Criminal Supplementary Rules 2014  (SA) r 37; District Court Criminal Rules 2014  (SA) r 53(2); Criminal Procedure Act 2009 (Vic) ss 207-209; Criminal Procedure Act 1689  (NSW) ss 52,53; Intervention Orders (Prevention of Abuse) Act 2009 (SA), referred to.
R v D (1997) 69 SASR 413; R v MJJ; R v CJN (2013) 117 SASR 81; R v Constant [2016] SASCFC 87; R v Marshall [1981] VR 725; Meissner v The Queen (1995) 184 CLR 132; R v Turner [1970] 2 QB 321; Guariglia v The Queen (2010) 208 A Crim R 49; The Queen v Holden [2009] VSCA 254; R v Pugh (2005) 158 A Crim R 302; R v Goodyear [2005] 1 WLR 2532; KCH (2001) 124 A Crim R 233; The Queen v Pinhassovitch  (Unreported, Supreme Court of Victoria Appeal Division, Phillips CJ, Crockett and O'Bryan JJ, 7 February 1994); The Queen v Shannon (1979) 21 SASR 442; R v Warfield (1994) 34 NSWLR 200; R v Mallinder (1986) 23 A Crim R 179; R v Webb [1971] VR 147; R v Hester [2007] VSCA 298; R v Skura [2004] VSCA 53; R v Palu (2002) 134 A Crim R 174; R v Newman; R v Simpson (2004) 145 A Crim R 361; R v Glen  (Unreported, New South Wales Court of Appeal, Grove, Simpson JJ and Loveday AJ, 19 December 1994); GAS v The Queen (2004) 217 CLR 198; R v Hutchinson (1994) 15 Cr App R (S) 134; R v Pritchard (1973) 57 Cr App R 492; Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606; R v Nicolaidis (1994) 33 NSWLR 364; R v Bui [2016] SASCFC 53; (2016) 125 SASR 137; Markarian v The Queen (2005) 228 CLR 357; R v Carbone [2012] SASCFC 34; R v Kreutzer (2013) 118 SASR 211; R v Hunter [2015] SASCFC 84; Markovic v The Queen; Pantelic v The Queen (2010) 30 VR 589; R v Bagnato (2011) 112 SASR 39; R v O’Toole [2013] SASCFC 18; R v Nemer (2003) 87 SASR 168, considered.

R v M, G
[2016] SASCFC 116

Court of Criminal Appeal: Blue, Nicholson and Hinton JJ

BLUE J:

1. This is an appeal against sentence.

2. The facts, sentencing remarks and contentions on appeal are summarised in the reasons for judgment of Nicholson J.

3. I agree that the appeal should be allowed and the appellant resentenced by this Court for the reasons given by Nicholson J.

4. I agree that the appellant should be resentenced to imprisonment for two years (taking into account the appellant’s guilty plea and time served before being granted bail on appeal) and that a non-parole period of nine months should be set for the reasons given by Nicholson J and, subject to one reservation, the additional reasons given by Hinton J. That reservation is that, for reasons developed below, I do not regard the sentencing indication given by the special directions hearing Judge as giving rise to an element of hardship that should reduce the period of imprisonment or length of the non-parole period.

5. I agree with Hinton J, for the reasons given by his Honour subject to the same reservation, that this is not a case in which there is good reason to suspend the sentence of imprisonment.

   Sentence indications

6. Some jurisdictions interstate and overseas have introduced formal regimes for the giving by courts of certain types of sentence indications in certain circumstances before defendants have pleaded guilty. In those jurisdictions, clear ground rules are set out in legislation[1] and/or practice directions[2] and/or detailed guidelines laid down by the jurisdiction’s intermediate appellate court[3] that govern in what circumstances a sentence indication may be given and what consequences, if any, it has.

   [1]    For example, Criminal Procedure Act 2009 (Vic) ss 207 to 209.

   [2] See, for example, former District Court Practice Note No 22 made in December 1992 pursuant to sections 52 and 53 of the Criminal Procedure Act 1986 (NSW) considered in R v Nicolaidis (1994) 33 NSWLR 364 and R v Warfield (1994) 34 NSWLR 200.

   [3]    See, for example, the detailed guidelines laid down by a specially constituted five member bench of the English Court of Appeal in R v Goodyear [2005] EWCA Crim 888; [2005] 1 Cr App R (S) 6, [2005] 3 All ER 117 at [53]-[77] per Lord Wolfe CJ, Judge LJ, Treacey, Wakerley and Calvert-Smith JJ.

7. Considered conceptually, a regime that provides for such sentence indications might proceed on different fundamental bases. A regime may provide for a sentence indication to be given by a judge who will not be sentencing the defendant if the defendant subsequently pleads guilty and which will not be disclosed to, or at least will have no influence on, the judge who ultimately comes to sentence the defendant.[4]

   [4]    By way of analogy, this is essentially the regime adopted by the Magistrates Court in the case of civil matters under rule 77 of the Magistrates Court (Civil) Rules 2013 (SA) in which a judicial intimation is given by one magistrate about the likely outcome of the action which intimation is not to be disclosed to the trial magistrate until after that the delivery of final judgment.

8. A regime may provide for a sentence indication to be given by a judge who is intended to sentence the defendant, and for such an indication to be binding on that judge[5] but not to be binding on any other judge who may come to sentence the defendant for that offence.[6] A regime may provide that any sentence indication given by one judge is binding, not only on that judge, but also on any subsequent judge who comes to sentence the defendant.[7]

   [5] See, for example, the sentence indication hearing pilot scheme that operated in the 1990s in the New South Wales District Court pursuant to sections 52 and 53 of the Criminal Procedure Act 1986 (NSW) and District Court Practice Note No 22 considered in R v Nicolaidis (1994) 33 NSWLR 364 and R v Warfield (1994) 34 NSWLR 200.

   [6] See, for example, the sentence indication scheme introduced in Victoria by sections 207 to 209 of the Criminal Procedure Act 2007 (Vic). This scheme limits the indication to one of immediate custodial imprisonment or non-custodial imprisonment and expressly provides that the indication is not binding on any other judge.

   [7]    See, for example, the detailed guidelines laid down by a specially constituted five member bench of the English Court of Appeal in R v Goodyear [2005] EWCA Crim 888; [2006] 1 Cr App R (S) 6, [2005] 3 All ER 117 at [53]-[77] per Lord Wolfe CJ, Judge LJ, Treacey, Wakerley and Calvert-Smith JJ.

9. In general, sentence indications regimes provide that an indication should only be given on application by the defendant (sometimes also only with the consent of the prosecution) and should not be volunteered by the judge. In general, they also provide that a judge should not give a sentencing indication which distinguishes between a sentence that would be imposed on a plea of guilty and one which would be imposed on conviction after trial. In general, regimes which provide that a sentence indication is binding also provide that it is not binding if the defendant is ultimately sentenced on the basis of circumstances that are materially different to those known or disclosed at the time of the sentence indication.

10. The question whether a formal regime for sentence indications should be introduced in South Australia does not arise on this appeal and consideration thereof is best left until it does arise. In the present case, the sentencing indication given by the special directions Judge was not given pursuant to any formal regime but was made on an ad hoc basis. This Court adverted to some of the potential dangers of prematurely expressed ad hoc sentence indications in R v Bui.[8]

    [8] [2016] SASCFC 53 at [48]-[51] per Kelly, Blue and Nicholson JJ.

11. In the present case, the view expressed by the Judge at the special directions hearing on 4 November 2015 was expressed in very tentative terms. The highest it reached on that occasion was the statement “I would have thought there would be room to talk about a non-custodial sentence on a plea. There may be some real scope there…There’s some value in a submission.” Moreover, the Judge explicitly said “I am expressing my view. That’s not everyone else’s view by the way.”

12. The appellant could not have been left in any doubt that, if he pleaded guilty, there was no assurance that he would receive a non-custodial sentence, even if he were sentenced by the special directions hearing Judge and even if there were no other relevant circumstances beyond those of which the Judge was already aware. He could not have been left in any doubt that there was no assurance that he would receive a non-custodial sentence if he pleaded guilty and, for any reason (including future unavailability of the special directions hearing Judge), he came to be sentenced by another Judge.

13. In mid-January 2016, the appellant decided to plead guilty and his solicitor arranged for it to be listed at an arraignment for the pleas to be entered. On 25 January 2016, at an arraignment before the sentencing Judge, the appellant pleaded guilty. For the reasons set out in the previous paragraph, the appellant’s decision to plead guilty was necessarily made on the basis that there was no assurance that he would receive a non-custodial sentence if he came to be sentenced by the special directions hearing Judge and no assurance that he would ultimately be sentenced by the special directions hearing Judge.

14. On 10 February 2016, sentencing submissions were made before the special directions hearing Judge. Ultimately, the matter was adjourned for further submissions on 10 March 2016. In the course of the hearing, the Judge adverted to the possibility of suspension, but the appellant received no more assurance on this occasion that a sentence of imprisonment would be suspended than had been given originally on 4 November 2016.

15. On 14 April 2016 the matter returned to the sentencing Judge who heard submissions on that date. During the first hearing, the sentencing Judge made it plain that his Honour was not bound by any views expressed by the special directions hearing Judge. This merely confirmed what the appellant had been told by the special directions hearing Judge that, if he came to be sentenced by another Judge, an adverse view as to suspension was likely to be taken. Further submissions were made before the sentencing Judge on 1 June 2016.

16. At no point did the appellant seek to withdraw his guilty pleas after he learned that he was to be sentenced by a Judge other than the special directions hearing Judge. At no point was the appellant entitled to proceed on the basis that, if he pleaded guilty, he would receive a non-custodial sentence.

17. In the circumstances, without endorsing the conduct of the special directions hearing Judge in offering the very cautious and limited sentencing indication that was given, the history of the matter in the District Court does not justify reducing the head sentence or non-parole period that is otherwise appropriate, nor does it give rise to good reason, in itself or in conjunction with all other relevant circumstances, to suspend the sentence of imprisonment to be imposed on the appellant.

    Conclusion

18. I would allow the appeal. I would set aside the sentence imposed by the Judge. I would resentence the appellant pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to imprisonment for two years. I would fix a non-parole period of nine months. I would not suspend the sentence of imprisonment.

    NICHOLSON J.        

    Introduction

19. GM pleaded guilty to the offences of aggravated indecent assault[9] and procuring an act of gross indecency.[10]  He has appealed against a sentence imposed in the District Court of imprisonment for three years, seven months and one week with a non-parole period of 18 months.[11] 

    [9] Contrary to section 56 of the Criminal Law Consolidation Act 1935.

    [10] Contrary to section 58(1)(b) of the Criminal Law Consolidation Act 1935.

    [11]   The Judge started at four years but allowed approximately ten per cent discount for the plea of guilty which was entered more than 12 weeks after arraignment.  There is no challenge to the percentage discount given.

20. The offence of indecent assault was committed in its aggravated form because the victim was under the age of 14 years.[12]  The victim, S, is the daughter of the appellant’s stepson and was aged five at the time of the offending.

    [12] Section 56(2) of the Criminal Law Consolidation Act 1935.

21. The maximum penalty for an aggravated indecent assault is ten years imprisonment and the maximum penalty for procuring an act of gross indecency (where a first such offence) is imprisonment for three years.  Unfortunately, the Judge identified in his sentencing remarks the maximum penalty for the offence of procuring an act of gross indecency as being imprisonment for ten years. 

22. The maximum penalty available for a particular offence is an important consideration when sentencing for that offence.[13]  There is some disagreement in the authorities as to whether a misapprehension of the maximum penalty should, of itself, lead to the conclusion that the exercise of the sentencing discretion necessarily miscarried such that the appeal should be allowed and the appellant resentenced or whether such a misapprehension will not operate to reopen the sentencing discretion unless the appellate court is satisfied that it was material.[14] 

    [13]   Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ) “[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and a case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all other relevant factors, a yardstick."

    [14]   Some of the authorities are collected and discussed by Sulan J (with whose reasons Kourakis J (as his Honour then was) and Stanley J agreed) in R v Carbone [2012] SASCFC 34 at [46]-[53].

23. It is unnecessary to resolve that issue in this case. Counsel for the Director of Public Prosecutions conceded that the appeal should be allowed and the appellant resentenced. In my view, the concession was properly made and the appeal should be allowed for this reason. In this case, the accepted factual basis of the offence of procuring an act of gross indecency was significantly more serious than the accepted factual basis of the offence of aggravated indecent assault, yet the former offence attracted a significantly lower maximum penalty. The Judge employed section 18A of the Criminal Law (Sentencing) Act 1988 and imposed the one penalty for both offences.  He started with a head sentence, before discount for the pleas, of four years imprisonment.  In the circumstances, I am satisfied that the advertence by his Honour to a ten year rather than three year maximum penalty for the procuring of the act of gross indecency should be seen as material to the sentencing outcome.[15]

    [15]   The reliance by the Judge on an incorrect statement of the maximum penalty for the second offence was only identified by the parties at the time the application for permission to appeal was heard by a single Judge.  The two grounds of appeal set out in the notice of appeal are that the Judge erred in failing to suspend the sentence and that the head sentence and non-parole period were manifestly excessive.  However, there is now no need to consider these grounds directly.

24. Submissions on appeal were directed to the issue of whether the matter should be remitted to the District Court for resentencing or whether this Court should resentence.  Given the possibility of the latter, submissions were also directed to the issue of resentencing generally. 

    Whether to remit or resentence

25. Counsel for the appellant contended that remitting the matter to the District Court would allow time for a report, addressing the psychological state of the appellant’s wife, to be obtained from a clinical psychologist.   

26. The appellant has had ample opportunity to provide medical and other evidence concerning the circumstances of the appellant’s wife in support of his ultimate submission that an immediate prison term would operate unduly harshly on the appellant and other members of the family, particularly, his wife.  There is no doubt that the appellant’s wife, who is in her early 70s, suffers from a multitude of medical complaints and significant physical disabilities, as discussed later in these reasons.  Having a psychologist record and report on such matters is not likely to advance the Court’s understanding of the likely consequences for her and the appellant, should he be required to serve a substantial period of time in prison, as canvassed by counsel’s submissions and the direct evidence received from the appellant’s wife and other family members.

27. In my view, this Court has available to it sufficient information to enable it to resentence the appellant and notwithstanding the absence of a psychological report concerning the appellant’s wife. 

1. Counsel also submitted that a resentencing in this Court would operate to deprive the appellant of a right of appeal.  He relied on certain observations in R v Kreutzer[16] in this respect.  However, Kreutzer involved disputed questions of fact likely to require the calling of oral evidence which, in the circumstances of that case, was more appropriately to be dealt with by a single Judge.  Any findings to be made with respect to disputed facts might also be the subject of appeal and the preservation of a right of appeal in such cases can be an important consideration.  Those considerations do not apply here.  The resentencing in the present case will depend not on findings of disputed facts still to be made but on the application of sentencing principle to a body of essentially uncontested factual material.  This is the ordinary case in which, typically, the Court of Criminal Appeal will undertake the resentencing task – there should be no loss of efficiency and the parties will have the benefit of three Judges giving consideration to the appropriate sentence.

   [16]   R v Kreutzer [2013] SASCFC 130; (2013) 118 SASR 211 at [42].

2. The argument that a right of appeal will be lost can be raised in all cases of a successful appeal against sentence and is ultimately self-perpetuating.  What if the Judge errs on the next occasion?  Will the appeal court be obliged to remit the matter again?  The “loss of a right of appeal” argument carries little weight except in particular circumstances of which Kreutzer was an example.

3. In addition, once the Director indicated during the hearing of the application for permission to appeal that the appeal would be conceded, a Judge of this Court released the appellant on bail pending the appeal.  In these circumstances, it is important that any resentencing exercise takes place as soon as fairness permits.

4. I would not remit the matter but proceed to a resentencing by this Court.

   The circumstances of the offending

5. The offences occurred on 30 October 2014 when the appellant was 72 years of age.  He was looking after S while her mother was at work.  Typically both he and his wife would look after the child together.  However, on this occasion, the appellant’s wife was in hospital and the appellant and S were alone in the house for the day.  The appellant arranged for S to lie down on the bed in the appellant’s bedroom.  He lay down next to her.  Both had undressed and were wearing only their underpants.

6. The account given by S, not surprisingly given her age and the circumstances, contains some ambiguities.  Nevertheless, her account is clear to the effect that the appellant kissed her on the vagina and that S was induced by the appellant to touch his penis and that ejaculation[17] occurred.  It is also clear from S’s account that she touched the appellant’s naked or exposed penis and not simply over his underpants.  However, there is ambiguity in the account with respect to whether the kissing of the vagina occurred on top of S’s underpants or whether they had been pulled down and the kissing occurred on the bare skin.  The Judge took the view, correctly with respect, that he could not be satisfied beyond reasonable doubt that the kissing occurred other than on top of the underpants.

   [17]   S provided a description from which this was readily to be inferred and it was conceded by the appellant.

7. There were indications in the account given by S that the charged occasion represented the only occasion when the appellant sexually assaulted her.  However, there is also some ambiguity in connection with the questions and S’s answers on this topic.  As such, the appellant was sentenced, and again correctly so with respect, on the basis that the two offences committed formed the components of a single, isolated, criminal event. 

8. The offending was serious.  It involved a gross breach of trust with significant ramifications for the wider family relationships.  In particular, there has been an estrangement between the parents of S and the appellant which almost inevitably has had a significant impact on the relationships between S’s father and his mother (the appellant’s wife) and with his other siblings, particularly, given that the appellant and his wife continue to live together and mutually support one another.  S and her parents have moved to New Zealand.  The Court was informed that whilst a work opportunity in New Zealand had arisen, the appellant’s offending and the consequential impact on family relationships made it easier for S’s parents to accept the opportunity and to relocate their family. 

9. Available to the Judge and to this Court were the victim impact statements of the father of S, the mother of S and S herself. 

10. S was very scared and angry and does not want to see the appellant again or anyone like him.  According to S’s parents, S has been hurt, scared and traumatised as have they.  The mother’s victim impact statement describes a level of estrangement between her family unit and the wider family and of being hated for doing the right thing in complaining about the appellant’s conduct.  There is no doubt that both father and mother feel deeply betrayed, are extremely concerned for the future wellbeing of their child and are devastated by the damage to and, in large part, loss of relationships with the wider family, particularly S’s father’s mother.  Notwithstanding this, S’s father, in his victim impact statement, has graciously indicated that he would not oppose allowing the appellant “back into the community under strict control ... I know that my mother needs his support and love to survive”. 

11. Of fundamental importance when considering the seriousness of such offending is the well understood, if not necessarily predictable, potential for long term psychological and emotional damage that can be caused to victims of such sexual offending including the very young.  Further, as Doyle CJ pointed out in R v D,[18] such offences can have an insidious effect upon the community. 

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

    This observation by the former Chief Justice was made in 1997.  Having now had the experience of the last 19 years one can only describe it as prescient.

    [18] (1997) 69 SASR 413 at 423.

    Legal principles concerning the effect of a prison sentence on dependents

12. I will discuss the appellant’s personal circumstances and those of his immediate family shortly.  However, a principal contention put on behalf of the appellant both to the Judge and on appeal is that if he were required to serve a term of imprisonment such would cause significant and undue hardship for his wife who is very ill and depends on the appellant as her daily carer.  In R v Hunter,[19] I had occasion to summarise the principles concerning the relevance of hardship on dependents when sentencing in the following terms.

    Subsection 10(1)(n) of the Criminal Law (Sentencing) Act 1988 provides that in determining the sentence for an offence, one of the factors to which a court must have regard is the probable effect any sentence under consideration would have on dependents of the defendant.  The authorities in this area are to the effect that hardship to the dependents of an accused person is not generally to be taken into account in an accused’s favour other than in extreme or exceptional circumstances.[20]  The probable effect on dependants has been said to be a limited aspect of the power to exercise mercy[21] and the hardship must be of such a serious character as to call for a merciful approach to sentencing.[22]  It must be a matter that goes beyond the hardship which inevitably results from a bread winner being sent to prison; there must be something that demands the exercise of mercy.[23]

    [19] [2015] SASCFC 84 at [34] (Nicholson J with whose reasons Gray and Peek JJ agreed).

    [20]   See for example R v Wirth (1976) 14 SASR 291; R v Moffa (No 2) (1977) 16 SASR 155.

    [21]   Markovic v R (2010) 30 VR 589.

    [22]   R v Penno (2004) 236 LSJS 457; [2004] SASC 354.

    [23]   R v Maslen (1995) 79 A Crim R 199; Neill v Police [1999] SASC 270.

13. Hardship of a sufficient nature can operate in two ways to mitigate what might otherwise be a just and proportionate sentence.  First, the effect of the hardship on the dependent or the dependents concerned, where the circumstances are extreme or exceptional, is a relevant consideration.  Second, the effect on the offender can also be a relevant consideration.  However, in this latter respect the observations of the Court of Appeal in Victoria in Markovic v The Queen; Pantelic v The Queen[24] are pertinent:

    The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor — for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the “exceptional circumstances” limitation.

    [citations omitted]

    Of potential significance is the point made by the Court of Appeal that where the focus is on the effect of the hardship on the offender rather than the offender’s family, such will manifest itself, if at all, by way of conventional issues of mitigation.  As such, they are not subject to the “exceptional circumstances” limitation, in the manner described in the passage from Hunter quoted above with its focus on the effect of hardship to the offender’s dependents. 

    [24] (2010) 30 VR 589 at [20] (citations omitted).

    The appellant’s personal circumstances

14. The evidence and submissions concerning the appellant’s personal circumstances as at the date of sentencing and as accepted by the Judge was summarised by his Honour in the sentencing remarks as follows.

    You are 74 years of age.  You were born into a large extended family and are the eldest of six boys.  You enjoyed a safe and happy childhood and left Adelaide Boys High School when you were 14 years of age and started working.  Since then, you have lived an industrious life.  You moved out of the family home to marry your first wife when you were 25.  The marriage produced two children.  Sadly, your first wife passed away in 1993 from breast cancer.

    In 1994 you commenced a relationship with your current wife whose husband had also recently died.  The two of you married in 1995.  Your wife had a son and a daughter from her previous marriage.  The victim in this matter, [S], is the daughter of your current wife’s son.

    You have been employed in retail all your life and have worked hard to provide a comfortable life for your wife and family.  You retired at the age of 65 and now receive a pension.  You are the main carer of your wife. Unfortunately, her health has gradually declined and she has become heavily reliant on you.  She suffers from severe arthritis which has resulted in the replacement of one hip and both knees.  The medication that she takes has affected her eyesight to the extent that she has lost full sight in her right eye.

    You have been a valuable contributor to your local community.  You have been actively involved in cricket for most of your life having played and umpired the game.  You were also an umpires’ observer and coach.  You and your wife have been actively involved in the Crows Supporters Group for a number of years and with the local church.  You deliver food to the homeless and provide catering services for church events.  I was informed that you have been nominated by your stepson for Australian of the Year and Local Citizen of the Year in the Campbelltown area.

    I have also received several character references.  The authors of those character references speak highly of you.

    Mr Balfour has expressed the opinion that the risk of you reoffending is low because you do not possess the other behavioural characteristics commonly found in paedophiles.  He also suggests that you are ashamed of your offending and although you have poor insight into your reasons for your offending you are not in a state of denial regarding it.  You are now in the later stage of life and your primary focus is your wife’s welfare and care of you.  Mr Balfour believes you have too much to lose by reoffending and you do not want to spend the balance of your life in gaol or risk the health and life of your wife through inadequate care.  Furthermore, he is of the opinion that you do not want to shame or humiliate your family any further.  I accept the opinions expressed by Mr Balfour.

    Mr Balfour has diagnosed you as suffering from an adjustment disorder at the time of offending, largely due to the need for you to be a carer for your wife.  He states that you would respond well to treatment and he recommended you attend Owenia House for rehabilitation.  I agree with that recommendation.  It should be observed that you contacted Owenia House but were advised that until these proceedings are finalised no treatment program can be commenced.

    In his very helpful submissions, Mr Graham suggested that should you be imprisoned, it was likely that the matrimonial home would need to be sold and your wife put into a nursing home.  He submitted that these were exceptional forms of hardship that would allow me to take into account as relevant mitigating factors.  I am prepared to accept that submission.

    I note that you have only one prior conviction which is recorded in 1973 for the offence of indecent assault.  The crime involved you grabbing a woman’s breast.  You have otherwise lived a law-abiding life.  You deserve credit for your guilty plea.  I accept that you are now genuinely remorseful.  I note that your plea was entered after the matter was listed for trial.  In the circumstances you are entitled to a sentencing discount of up to 10% for your guilty pleas.

15. For the purposes of the appeal, the appellant read and relies upon three affidavits, two by his solicitor, Andrew Robert Graham, affirmed 20 July 2016 and 21 September 2016 and one by the appellant’s wife, affirmed 11 August 2016.  The three affidavits have been received as relevant to the question of resentencing.  They were not available to the Judge.

16. Exhibited to Mr Graham’s July affidavit is a letter dated 19 July 2016 from the appellant’s wife’s general practitioner summarising her current medical status.  As the Judge recorded in his remarks, the appellant’s wife has had a total hip replacement and two knee replacements related to severe rheumatoid arthritis.  The hip replacement occurred in February 2016 and she suffered a number of surgical complications including pulmonary emboli (lung clots) and a serious blood-based infection.  She still has a residual infection requiring ongoing monitoring and antibiotic treatment and has ongoing pain management issues.  Dr Pearce expressed the following opinion.

    At home she has needs [sic] ongoing nursing care and is totally dependent on the support she gets from [her husband].  He is required to help her with activities of daily living and manage her medication program that includes 20 plus tablets a day.  Her infectious disease physician estimates are that she will need ongoing care for monitoring of her infection for at least 12 months after she was first unwell (about March 2017).

    She will need close monitoring and support over the coming months and she will be having regular visits at Burnside, Royal Adelaide, St Andrews and Modbury Hospitals.  Bloods have to be taken regularly, sometimes at home and sometimes she needs to get to the laboratory.  It is important she has transport available.  Some of her medication is only available through the RAH. 

    [The appellant’s wife] is still a falls risk and has had several falls since arriving home.  Her right hip is prone to dislocation and she needs to be careful.  She is reliant on [her husband] for help to manage her medical care and appointments as well as help to manage her care at home with mobilising around the house, showering and dressing.

17. According to Dr Pearce, in his earlier report dated 6 March 2016 which was made available to the Judge, the appellant’s wife’s other problems have included osteoporosis, back surgery to relieve nerve damage to the spine and cardiac respiratory issues.  She has not driven a vehicle for four years or so because of her medical conditions including the loss of vision in her right eye. 

18. Also exhibited to Mr Graham’s affidavit are three letters each dated 16 July 2016: one from the appellant’s son and his wife; one from the daughter of the appellant’s wife (stepdaughter of the appellant); and one from a second son of the appellant written on his and his wife’s behalf.  These letters were not before the Judge.  The burden of each letter is to the effect that each of the authors and their families have a number of quite significant commitments and difficulties in their own family lives which prevent them from devoting any appreciable time to the care of the appellant’s wife. 

19. The first son and his wife have three school aged children, one of which suffers from quite significant mental and physical health issues.  Both the son and the wife work full time.  The wife also studies.  The son has two jobs.  Their home life is hectic and busy.  They are unable to find sufficient time “continuously to support” their stepmother.  The appellant has been an integral part of her life in this respect and the son and his wife do not feel as though they are in a position to provide much by way of assistance, certainly for any extended period of time.

20. The daughter of the appellant’s wife is the mother of six children and has full time custody of two who have no contact with their father.  She works three days a week.  She has a son who was born with a rare but severe birth defect.  He needs her assistance with his physical needs on a day-to-day basis.  She is involved with his numerous medical specialists and a number of after-school activities designed to assist with his motor skills.  The daughter has only limited time available to assist her mother.  She has said in her letter that “my mother ... is suffering numerous medical ailments that require daily assistance and due to my own family medical issues I am unable to provide her with the assistance she needs”. 

21. On 8 August 2016, the daughter was to be admitted to hospital for a medical procedure which would require hospitalisation for seven to ten days and leave her housebound for four to six weeks.  Her husband who also works would be required to care for her and the children during this time.

22. The second son of the appellant works full time and his wife works night shift and sleeps during the day.  They have one school-aged child who has cerebral palsy and requires constant care and supervision.  He has also recently been diagnosed with autism together with social and behavioural problems.  This son and his wife are very committed to assisting their child with medical and rehabilitation specialist appointments including physiotherapy, occupational therapy, psychologists, speech therapists and the like.  Their child attends a particular school that provides a program suited to his needs.  The school is a one hour round trip from their home.  This son and his wife have also indicated that, given their difficulties and family commitments, they would be unable to look after their stepmother on a regular basis, if at all.

23. Initially, during the appeal hearing, submissions were put on behalf of the appellant to the effect that if he were to spend a significant period in prison, his wife would not be able to live at home without his care and assistance and that the only solution would be for her to go into some form of aged care facility.  The concern was raised that this might well require the sale of their jointly owned house in order to fund any such new living and care arrangements.  A consequence would be that the appellant would have no home when he was released from prison.  Submissions along these lines had also been put before the Judge.  The evidence initially provided in support of these contentions was unsatisfactory.  The appeal was adjourned for a short period to enable further evidence to be obtained and further submissions to be put on this and any other matters that counsel for the appellant might wish to agitate.

1. During the adjournment, the affidavit of the appellant’s wife, previously referred to, was provided.  Exhibited to the affidavit is a home based “support plan” prepared on behalf of an Australian Government Department of Health organisation “My Aged Care”.  The report describes the appellant’s wife’s medical and physical difficulties and makes various suggestions as to potentially available community-based in house care and assistance.  There is no doubt that the appellant’s wife is in need of a substantial amount of physical support.

2. The appellant’s wife has deposed in her affidavit to the fact that a number of interventions are presently underway: the house has been assessed in preparation for ramps and rails to be installed; government supplied taxi vouchers have been obtained permitting half price taxi fares (up to $40); the Red Cross has agreed to transport the appellant’s wife to and from the Royal Adelaide Hospital for appointments at a cost of $12 each trip; approval has been obtained for a council cleaner for one and a half hours per fortnight; a monitored personal alarm has been acquired; and groceries can be ordered online for home delivery.  However, the appellant’s wife has now indicated that, with assistance of this nature, she will try and remain in the family home should the appellant be sent to prison. 

3. Mr Graham’s second affidavit of 21 September 2016 was received after the Court had finally reserved its decision.  Mr Graham has deposed to the fact that the appellant’s wife dislocated her hip on 11 September 2016 which necessitated further surgery and rehabilitation.  A brief report from her orthopaedic surgeon is exhibited to the affidavit.  She will require further ongoing support at home as a result.  In addition, there is a prospect of further surgery on her lumber spine in the future and the possibility of future hip dislocation cannot be ruled out.  The continuing problems canvassed in this affidavit underscore the fragility of the appellant’s wife’s condition and circumstances and her continuing need for assistance at home.

4. I accept that the appellant’s wife’s already difficult life and circumstances will become much harder should the appellant not be available to assist her, particularly if this were to be so for a relatively long period of time.  The appellant’s wife has become very dependent on the appellant for assistance generally, including, with matters such as her very large number of medical appointments, all of her social activities, activities around the house and garden (many of which she would not feel secure about doing, if living alone), cooking, adjusting to more comfortable sleeping positions multiple times throughout the night and managing her medications (22 tablets each day).  The appellant’s wife has made enquiries as to the availability of respite care or full-time care in an aged care home should this become necessary.

5. I am not satisfied that imprisonment of the appellant, unless for a lengthy period, is likely to result in a forced sale of the family home.  I am satisfied that, over the short to medium term, available community assistance together with some assistance from and shared between the other children would permit the appellant’s wife to remain alone in the family home.  Nevertheless, I am satisfied that the hardship that would be caused to the appellant’s wife and the wider family members in the event that the appellant were to be imprisoned still would be of such significance as to amount to exceptional circumstances and, as such, should be taken into account in the appellant’s favour.  In addition, I am satisfied that the hardship caused to the appellant’s wife and the wider family as a result of the appellant being unable to care for his wife would make the experience of imprisonment more burdensome for the appellant in the sense envisaged by the Victorian Court of Appeal in Markovic.[25]

   [25]   Markovic v The Queen; Pantelic v The Queen (2010) 30 VR 589 at [20].

   Two further considerations

6. The appellant was sentenced and taken into custody on Wednesday 29 June 2016 at 9.40am.  He was granted bail pending the appeal on the morning of Friday 8 July 2016 after spending, on my calculations, nine days in custody.  Counsel submitted that, having been released on bail, it would be an additional hardship relevant to sentence for the appellant to be returned to custody.  I reject this submission. 

7. Counsel for the Director at the permission hearing indicated that the appeal would be conceded such that the appellant would be entitled to be sentenced afresh.  In this context, counsel volunteered that there was no reason why the appellant should not be restored to the position he had been in immediately prior to sentencing and that bail would be appropriate.  Counsel for the appellant did not wish to add anything and, by implication, must have adopted the position put by counsel for the Director.  The appellant voluntarily entered into the bail agreement. 

8. It is true that the appellant entered custody and then was released on bail in order to go through the sentencing process and all the stress entailed for a second time as a result of an error for which he is in no way responsible.  However, that error has provided him with a second opportunity to press his case for a more lenient sentence.  Furthermore, he accepted the offer of bail in the full knowledge that he was to be placed in the same position – no better and no worse – that he had been in prior to sentencing in the District Court.  He was aware that a custodial penalty was still a live issue. 

9. In addition, whilst each case will be determined on its own facts, one should be cautious before giving any or any significant weight to such a matter.  The granting of bail pending appeal, of itself,[26] ought not be allowed to influence the sentence later ordered.  To allow otherwise would risk an irrelevant factor being allowed to influence the discretionary decision whether or not to grant the bail.

   [26]   As opposed to the underlying considerations relevant to the exercise of the discretion.

10. A second consideration arises from the manner by which the matter was dealt with during various directions hearings prior to sentencing.  The matter had been set down for a trial to commence on 15 February 2016.  On 4 November 2015, a special directions hearing was held before a Judge of the District Court, not the sentencing Judge.  A purpose of the special directions hearing was to explore the potential for a resolution of the matter without the need to proceed to trial.  The following exchange occurred at the directions hearing.

    HER HONOUR:   I just raise this; a young child, if there was a plea and there was no history and it’s a one-off incident, there’s some talking worth doing.  Your client understands that, Mr Graham?

    MR GRAHAM:    Yes, your Honour.

    HER HONOUR:   It would be very difficult to come back from that position if he’s convicted after a trial though.

    MR GRAHAM:    Yes.

    HER HONOUR:   Your client understands that?

    MR GRAHAM:    He does.

    HER HONOUR:   What I’m saying, I’ll say this explicitly, I would have thought there would be room to talk about a non-custodial sentence on a plea.  There may be some real scope there.  It would be very difficult to maintain that after a trial.

    MR GRAHAM:    I’ll discuss that with my client again.

    HER HONOUR:   I’m expressing my view Mr Graham.  That’s not everyone else’s view by the way, so if you wanted to do anything about that, you’d want to come back before me.

    MR GRAHAM:    I hear what your Honour is saying.

    [There was then some discussion concerning the indecent assault involving an adult in 1973].

    MR GRAHAM:    That’s the extent of his history. 

    HER HONOUR:   I’m sure the Crown might have a different view about, but if your client has – how old is he now? 

    MR GRAHAM:    He is 73.

    HER HONOUR:   In effect, if it’s one-off offending, there might be some – there’s some value in a submission.  I would imagine there would be very little value after a trial, ok?  I’ll adjourn the matter for trial, but if you want to bring the matter back for a plea, go ahead.

11. At defence counsel’s request, the matter came before the Chief Judge (again not the sentencing Judge) on 15 January 2016, for the purpose of having the matter adjourned into an arraignment list with an indication from defence counsel “quite strongly that the matter is resolved”. 

12. The matter came before the sentencing Judge in an arraignment list on 25 January 2016.  Defence counsel asked the Judge to arraign but not to administer the allocutus. 

    It’s agreed between the parties this matter should go back before [the special directions hearing Judge] and I ask that it be listed on 10 February at 2pm before her Honour.  We had a special directions hearing with respect to the matter and her Honour indicated a willingness to have the matter called on before her. 

    The Judge was told that whilst it was to go back before her Honour as a guilty plea, her Honour was on leave until 8 February and given the proximity of the trial date it was thought appropriate that the trial be vacated and that was why the matter had been put into the arraignment list for 25 January 2016.  The Judge vacated the trial and listed the matter before the special directions hearing judge on 10 February 2016.  However, before doing so the following exchange occurred.

    HIS HONOUR:    Why should it go back before her Honour?  I mean she was the special directions hearing Judge.  Normally a special directions hearing Judge is not burdened with guilty pleas.  Why can’t I deal with the matter?

    MR GRAHAM:    Of course you could, but her Honour gave certain indications during that special directions hearing and then indicated her willingness to have the matter called back on before her Honour, and that is something that has assisted the resolution of the matter.

    [DPP COUNSEL]:               I agree with everything my friend has put.  Her Honour did invite the parties to have the matter called back on and, indeed, was open to hearing the sentencing submissions on the matter.  There is of course nothing to stop your Honour remaining seized of it unless her Honour has an extensive history of the file that I’m not aware of.

13. The matter next came before the special directions hearing Judge on Wednesday 10 February 2016.  The plea of guilty having been taken by the Judge on the previous occasion, her Honour arranged for the allocutus to be administered.  A discussion ensued, involving some matters by way of submission, over approximately 14 pages of transcript before the Judge adjourned the matter to Thursday 10 March 2016 for submissions before her. 

14. During the discussion, her Honour repeated the earlier given sentencing indication, although not in such direct terms. 

    HER HONOUR:   Have you got anything about your client’s background, or any report, or anything like that?  I’m not suggesting it’s necessary.

    MR GRAHAM:    No psychological report, no.

    HER HONOUR:   So is there any explanation for this offending?  This is still serious offending – even if I am able to find good reason to suspend, Mr Graham – and in the normal course it would be most unlikely that I would sentence your client to anything other than a suspended sentence with the requirement that he attend at Owenia House.

    MR GRAHAM:    I won’t be contesting any such condition on a bond if your Honour saw fit to suspend the sentence and I don’t say it is anything but serious offending.

    HER HONOUR:   No.

    In fairness to the Judge, her Honour also raised a number of matters that she would wish to be satisfied about on the next occasion, all of which might bear upon the appropriate sentence.  On this occasion, it could not be said that any guarantee had been provided.  Nevertheless, this discussion took place after the plea of guilty and the allocutus had been administered.  As the extract from the transcript of the initial special directions hearing, set out above, shows, a strong sentencing indication was given at that stage and before any plea was taken.  Further, in discussions with the sentencing Judge at the time his Honour took the plea, defence counsel advised that the indication given at the special directions hearing was “something that has assisted the resolution of the matter”. 

15. The special directions hearing Judge became unavailable for the adjourned date for submissions, 10 March 2016.  It is unclear precisely what occurred but it can be inferred that she became unavailable for an extended period.  The submissions were administratively adjourned to 14 April 2016 before the sentencing Judge.

16. It cannot be said that the appellant has been prejudiced in the conventional sense as a result of the sentencing indication given and the assignment of the matter to another Judge.  It was made plain that other Judges might take a different view.  There was never any assurance that the special directions hearing Judge would continue to be seized of the matter.  Further, once it became apparent that the special directions hearing Judge was not able to continue with the matter and that it was to come before a different Judge for submissions and sentence, it was always open to the appellant to make an application to withdraw his plea.  He did not do so.  Whether or not any such application would have been successful cannot be determined now, although it should be noted that it can be difficult to succeed with such an application.  Further, the appellant has now conceded the factual basis of his offending to the extent as determined by the sentencing Judge and has expressed and demonstrated substantial contrition.

17. Nevertheless, the appellant was led to believe that a suspended prison term was a real possibility, even likely.  It is unfortunate that the appellant was allowed to hold that expectation, to rely on it, at least to the extent of influencing his decision to plead rather than go to trial, only to have it dashed by the happenstance that the Judge then seized of the matter was unable to continue with the sentencing process that the Court had assigned to her.  The circumstances of this matter underscore the extreme care that needs to be exercised by Judges when they engage in a process intending to assist with a resolution of criminal charges.  In more extreme cases a sentencing outcome might be vitiated[27] and, in any event, any cause for a legitimate sense of grievance in an accused needs to be avoided. 

    [27]   For example, R v Bui [2016] SASCFC 53; (2016) 125 SASR 137 at [48]-[52].

18. Given the approach I propose to take with respect to resentencing the appellant in this matter, it is not necessary for me to express a concluded view as to whether or not the dashed expectations of the appellant, in the circumstances of this case, are to be regarded as an element of hardship relevant to the sentencing discretion or, if so, the weight that might be accorded to it.

    Resentencing

19. The appellant’s offending was serious for the reasons earlier set out and when sentencing for child sex offences general deterrence must have a significant role to play.[28]  However, the considerations personal to the appellant, as summarised by the Judge, together with the hardship considerations earlier described, strongly favour the exercise of leniency at all levels of the sentencing process. 

    [28] Section 10(2)(c) of the Criminal Law (Sentencing) Act 1988 provides that the sentencing court must give proper effect to: “in the case of an offence involving the sexual exploitation of a child—the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence”.

20. According to the information before the Judge and this Court, the appellant has been a person of positive good character.  He has made significant contributions to family and to the wider community over many years.   This is not a case where there is merely an absence of evidence of bad character.  In this respect, I have not overlooked the previous indecent assault committed against an adult woman more than 40 years ago. 

21. There comes a point where a person’s demonstrated positive good character over 70 or so years of life demands attention.  Furthermore, for the various reasons given by the clinical psychologist, Mr Balfour, the appellant presents a low risk of re-offending and the need for personal deterrence is of minimal, if any, concern.

22. The offending in this case can be appropriately dealt with by the imposition of one penalty pursuant to the discretion available under section 18A of the Criminal Law (Sentencing) Act 1988.  It is an illustration of what is sometimes referred to in this context as the “one transaction”.[29]  There was a single, opportunistic, unbroken course of closely related conduct occurring over a relatively brief, albeit indefinable, period involving the one victim.

    [29]   Discussed, with reference to the authorities, by Peek J in R v Bagnato [2011] SASCFC 161; (2011) 112 SASR 39 at [70]-[81].

23. When applying section 18A to impose one penalty, an assessment of the appellant’s overall criminal culpability needs to be made. However, the difference in the two maximum penalties also needs to be recognised and accounted for. In this case, the facts of the indecent assault (kissing over the underpants) place this aspect of the offending well towards the low end of the scale of seriousness for this type of offence, if considered in isolation. However, the facts of the offence of procuring an act of gross indecency, place this aspect of the offending towards the upper end of the scale of seriousness of this type of offence.

24. In arriving at a single penalty, I have taken the view that if one were to sentence for each offence separately there ought to be substantial, if not total, concurrency.  Further, notwithstanding the different maximum penalties, I would sentence for the procuring an act of gross indecency offence more severely, in nominal terms, than for the indecent assault offence.  The latter, in isolation, would attract a sentence of imprisonment in the order of months at most, notwithstanding the ten year maximum, whereas the former would attract a sentence within the upper half of the three year maximum. 

25. I would impose the one penalty for both offences by starting with imprisonment for 27 months but reduced by ten per cent on account of the pleas of guilty to 24.3 months.  I would round that down to two years after giving credit for time spent in custody prior to being granted bail. 

26. The same considerations that have informed my setting of the head sentence, that is, the nature and seriousness of the offending, the appellant’s personal circumstances, including the issue of hardship, the limited relevance on the facts of this case of personal deterrence and the continuing need for general deterrence, are all material to the setting of the non-parole period and the question of whether or not the sentence should be suspended.  I would set a moderate non-parole period of nine months.

27. Section 38(1) of the Criminal Law (Sentencing) Act 1988 allows for a sentence of imprisonment to be suspended if the Court finds “good reason exists for doing so”.  In R v O’Toole,[30] Peek J (with whom Sulan J agreed) explained the correct approach to the exercise of this discretion as follows.

    This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.[31]  The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[32]  It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[33]  The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.

    [30] [2013] SASCFC 18 at [50].

    [31]   Wessling v Police (2004) 88 SASR 57, 63 [27] (Besanko J).

    [32]   R v Kruger (1977) 17 SASR 214, 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530, 535 (Perry J).

    [33]   R v Wacyk (1996) 66 SASR 530, 535 (Perry J).

1. The appellant is now 74 years of age.  He has not spent any time in prison apart from the nine days or so following the original sentence in this matter.  One should take great care, before committing a 74 year old person to prison for the first time, to ensure that the purposes of punishment and the broad objectives of the sentencing process require such a step.  A summary of these purposes and objectives was provided by Doyle CJ (with whose remarks, in this respect, both Prior and Vanstone JJ agreed) in R v Nemer.[34]

   The sentencing of offenders who have committed serious crimes is difficult.

   The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) ("the Sentencing Act"). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.

   The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society's disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.

   In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence and sometimes they point in different directions. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.

   [citations omitted]

   [34] [2003] SASC 375; (2003) 87 SASR 168 at [4]-[7].

2. In this case, the offending whilst serious was a single incident, albeit with significant ramifications for the family relationships, following the breach of trust involved.  There is a need to demonstrate society’s disapproval and rejection of the conduct in question and there is a need to send a message to other persons who might be inclined to offend in this way.  However, for the reasons given by Mr Balfour, the need for the protection of the public, in particular children, is very low.  As against that, the appellant’s personal circumstances, as summarised by the Judge and further described above, are compelling. 

3. Much of the argument before this Court focussed on the question of hardship to the appellant’s wife should he be committed to prison.  However, there is much to be said in favour of suspension, independently of those matters.  A risk in this matter is that the hardship factors relied on by the appellant have so dominated during submissions as to obscure other personal considerations.  The question of hardship that would be suffered by the appellant’s wife in her latter years strengthens an already sound case for suspension.  I also have been unable to ignore the indication given by the father of S that he sees the benefit in having the appellant available in the community to continue to care for and look after his mother.  It may be as simple as this, that the father of S, the appellant’s stepson, is better placed than most, perhaps any, to know the best way by which his and the wider family might be able to move forward.

4. After balancing the seriousness of the offending and the need for general deterrence against all of the matters favourable to the appellant, I would exercise the discretion available to suspend the sentence that I would impose. I would do so provided that the appellant were to enter into a bond to be of good behaviour for a period of two years.  It should be a condition of that bond that he be supervised by an assigned Correctional Services Officer for that period of two years and that he undertake such courses and counselling directed at assisting with the rehabilitation of child sex offenders as that Correctional Services Officer requires.

5. In addition to sentencing the appellant, the Judge, by consent, made an order under the Intervention Orders (Prevention of Abuse) Act 2009 in accordance with the power conferred by section 19A of the Criminal Law (Sentencing) Act 1988.  The order was directed at, inter alia, prohibiting the appellant from being in any way in contact with or communicating with S as the protected person.  During the appeal, some discussion ensued as to whether that order was part of the sentence imposed by the Judge such that it would be revoked by the setting aside of the Judge’s sentence or whether it stood independently of the sentence and would remain in place notwithstanding the outcome of the appeal. 

6. I incline to the view that it comprises an order independent of the sentence and remains in force irrespective of the outcome of the appeal against sentence.  In any event, and out of an abundance of caution, this Court should revoke the Judge’s order and make another order of this Court in identical terms.  As I understand the position, there was no opposition to such an approach expressed by either counsel at the appeal.

   Conclusion

7. I would make the following orders.

   1.     Appeal be allowed and the District Court sentence set aside.

   2.     The appellant be resentenced for both offences to a single penalty of imprisonment for two years with a non-parole period of nine months.

   3.     That this term of imprisonment be suspended upon the appellant entering into a bond to be of good behaviour for two years the terms of which would include:

   3.1    that the appellant be subject to supervision by an assigned Community Corrections Officer for two years;

   3.2    that the appellant undertake such counselling and courses directed at the rehabilitation of child sex offenders as his assigned Community Corrections Officer requires.

   4.     That the intervention order made by the Judge be revoked and replaced with an intervention order made by this Court in identical terms.

   HINTON J.

   Introduction

8. I have had the benefit of reading the judgment of Nicholson J, for which I am grateful. I agree with his Honour that the Director was right to concede the appeal and with his Honour’s reasons for arriving at that conclusion. I also agree with his Honour that it is appropriate for this Court to proceed to sentence the appellant afresh. While I agree with his Honour’s sentence of a single penalty of two years of imprisonment with a non-parole period of nine months (including the discount provided for the appellant’s pleas and the allowance made for time already spent in custody), I have arrived at that sentence for different reasons. Further, I do not consider that good reason exists to suspend that sentence. My reasons follow.

   The circumstances of the offending in this case

9. The appellant pleaded guilty to one count of aggravated indecent assault and one count of procure an act of gross indecency, those offences being contrary to s 56(1) and s 58(1)(b), respectively, of the Criminal Law Consolidation Act 1935 (SA). The victim of his offending was his step-granddaughter, S. She was five years old at the time.

10. I gratefully adopt the sentencing Judge’s summary of the circumstances of the offending. His Honour said:

    The offences occurred on 30 October 2014 when you were looking after … [S] … while her mother was at work. Usually you and your wife would look after… [S] …  together but on this occasion your wife was in hospital and you and … [S] … were alone in the house for the day.

    In the late afternoon the child’s mother collected … [S] … and noticed that she had a red swollen lump on her forehead. Later that evening, she asked … [S] … about what had happened to her head and … [S] … replied ‘I just bumped it into pop’s door’. The following evening the child’s mother again asked her what had happened. [S] … explained that she had bumped her head on your bedroom door. When … [S] … was asked why she had been in your bedroom, she responded ‘I lie down in pop’s bedroom to relax’.

    A few days later, … [S] … was again questioned by her mother about what had happened in the bedroom. … [S] …  said that she had been lying on your bed naked and then added that she had her knickers on. When asked why she had only her knickers on, she replied ‘Pop want us to lie in knickers and jocks only’. When asked what had happened when she was lying down, … [S] …  replied ‘Pop kissed my pec pec’ which is Filipino for vagina. … [S’s] …  mother is of Filipino extraction.

    When the child’s mother asked how you kissed her pec pec, … [S] …  pulled down the front of her knickers, exposed her vagina and pointed to it. [S] … then went on to say that you had asked her to kiss your boto, the Filipino word for penis, and to also touch it. [S] … then went on to say that something came out of your boto which she said was like spit and yucky. She told her mother that she did not want to ever see you again. She reported to her mother that you had warned her to keep the incident a secret or you would not be her friend any more.

    On the advice of Families SA … [S’s] …  mother took her to a medical centre for a physical examination which showed no signs of trauma to her vagina.

    On Tuesday, 9 December 2014, police attended your home and conducted a search. At the conclusion of the search you were taken to the city watch-house where you were interviewed and charged. In your record of interview you denied any offending and suggested that … [S] … had a vivid imagination. However, you now admit that you indecently assaulted … [S] …  by kissing her vagina and procured her to commit an act of gross indecency which involved her touching your penis.

    It should be observed that you contend that you kissed … [S’s] …  vagina on the outside of her knickers. The prosecution submitted that I should sentence you on the basis that you kissed her vagina while it was exposed. I am not prepared to sentence you on the basis advanced by the prosecution. There was an element of ambiguity in … [S’s] … account as to whether her vagina was exposed or not. My finding in that regard however, does little to diminish the seriousness of your behaviour.

11. In resentencing the appellant, I do so on the factual basis set out immediately above. I make plain that I do not go behind the sentencing Judge’s finding that the indecent assault consisted of the kissing of S’s vagina on the outside of her knickers. 

    The gravity of the offending in this case

12. The sentencing Judge said:

    I turn to the sentence that I must impose. The offences you committed against your granddaughter were serious. You held a position of trust. It was your duty to protect her from harm. You abused that trust for your own tawdry sexual gratification. The courts must do what they can to protect young children from such conduct by imposing sentences that will, as far as possible, serve to deter people minded to engage in this sort of vile behaviour. Obviously, as I have already observed, … [S] … and her family have suffered by reason of your conduct.

13. I agree. The sentencing Judge’s comments are consistent with the observations of Doyle CJ in R v D[35] and Kourakis CJ in R v MJJ; R v CJN.[36]

    [35] (1997) 69 SASR 413 at 423.

    [36] (2013) 117 SASR 81 at [84].

14. The gravity of the appellant’s offending is exacerbated by his threat to S to keep the incident a secret upon pain of him ceasing to be her friend. The conflict in loyalty and emotion and the fear and anxiety that such threats, often made in cases like this, cause in children only adds to the harm done.

15. The sentencing Judge had the benefit of a report prepared by Mr Richard Balfour, a forensic psychologist. Mr Balfour recorded that the appellant has poor insight into the reasons for his offending behaviour. Mr Balfour offered the following explanation for the offending:

    At the time of the current offences, I believe that [the appellant] was suffering from an Adjustment Disorder in response to his wife being hospitalised for a cataract operation that resulted in post-operative complications and her losing sight in one eye. This was clearly a very stressful period in his life. He has basically become his wife’s care (sic) because she has complex physical health problems, and requires his assistance with everyday tasks such as her personal hygiene. I believe that he was most probably suffering from a degree of carer burnout. Nevertheless, he would still have been able to sufficiently appreciate the nature and quality of his actions, and their wrongfulness.

    I note that there are some parallels between [the appellant’s] sexual offending behaviour during his thirties when he indecently assaulted an adult woman, and the current offences. They both occurred at a time in his life when he was feeling anxious about his wife’s welfare. He appears to have resorted to sexual self-gratification to cope during a stressful period in his life. Both his sexual offences appear to be largely opportunistic.

16. The reference to the offending committed by the appellant when he was in his thirties is a reference to a conviction for indecent assault that occurred in 1973. The appellant has committed no other offence. The circumstances of the 1973 offence were relayed by the appellant to Mr Balfour. Mr Balfour, in turn, reported:

    [The appellant] has one prior sexual offence. He was aged in his thirties when he was convicted of indecent assault. He basically committed an act of frotteurism against an attractive adult woman who was a stranger to him. His offending was impulsive, opportunistic, and involved very little premeditation. He offending (sic) occurred at a time in his life when he was felt (sic) stressed because his first wife had been hospitalised to give birth to their second son.

17. I return to the 1973 offending later in these reasons.

18. I accept Mr Balfour’s characterisation of the appellant’s offending against S as opportunistic insofar as the offending was not the product of prolonged planning. However, it cannot be said that the offending was impulsive or that the appellant did not have the opportunity to think through what he was about to do and the ramifications thereof. The appellant came up with a rouse designed to make what he intended to do seem innocent and normal to S. That required thought and some deliberation.

19. I find the explanation proffered by Mr Balfour unpersuasive at worst, and of little comfort at best. In this regard, I do not mean to be critical of Mr Balfour. He was doing no more than attempting to make some sense of the offending in circumstances where the appellant had shown no real insight into the reasons for his offending. The absence of an explanation emanating from the appellant adds complexity to assessing the threat he may pose to other children, the extent to which he needs to be deterred and his prospects of rehabilitation. In any event, resort to the sexual abuse of a granddaughter as a means of coping with stressful circumstances, namely anxiety about his wife’s welfare, does not mitigate the deliberate decision, opportunistic in the sense explained, as it was, to abuse the child for the purpose of sexual gratification. The appellant took a calculated risk, no doubt hoping that by his threat he could rely upon S’s silence. The rouse and the threat taken together indicate that he acted knowingly with foresight of the consequences of discovery. He was aware of the risk to himself and decided to run it, not caring for the consequences to S or his family more broadly.

    The appellant’s personal circumstances

20. I gratefully adopt the sentencing Judge’s summary of the personal circumstances of the appellant. That summary is set out in the reasons of Nicholson J. I need not repeat it.

    Hardship to the appellant and his wife

21. Section 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) provides:

    In determining the sentence for an offence, a court must have regard to such of the following factors and principles as may be relevant:

    …

    (n) the probable effect any sentence under consideration would have on dependants of the defendant;

22. Recently, in R v Constant,[37] this Court had reason to consider the principles to be applied by a sentencing court in discharging the duty imposed by s (10)(1)(n) and its federal equivalent, s 16A(2)(p) of the Crimes Act 1914 (Cth). The Court said:[38]

    … In our view, consistent with Dr Thomas’s first exception, both s 16A(2)(p) and s 10(1)(n) invite sentencing courts to consider whether the community’s interest in the imposition of the appropriate sentence, being a sentence formulated having regard to the purposes of punishment and for the promotion of the community welfare through the administration of justice and the enforcement of the criminal law, would, if imposed, pursue those purposes at a cost to the defendant’s family or dependants that is, in the community’s interests, too high such that the sentence under consideration should be adjusted. This, in our view, is what is entailed in the application of the exceptional circumstances test. In this regard, we find ourselves largely in agreement with Kourakis J, as he then was, where, in R v Buckskin, he said:

    The exception articulated by Wells J has been recognised in many cases since. In my respectful opinion, even though the exception is not strictly logical by reference to matters of sentencing principle, it is justifiable on the grounds of public policy. In my view, where a claim is made to mitigate a sentence on the grounds that it will adversely affect an offender’s family, the court must necessarily weigh the public interest in imposing a sentence which sufficiently serves the purposes of punishment and deterrence against the public interest in the welfare of the children and dependents of the offender. The offender’s failure to discharge his or her duty to them does not extinguish the public interest in their welfare. The welfare of children is a matter of public interest of the highest importance.

    With respect, I do not find the threshold test of “exceptional circumstances” useful because it focuses on circumstances which are peculiar instead of the substance of the concern about the childrens’ welfare and its relationship to the other sentencing considerations. - I would prefer to take the approach that the welfare of the children of an offender who faces imprisonment is always a relevant consideration but that in the majority of cases it will have no material effect on the sentence imposed because of the public interest in the imposition of condign punishment. However, the effect of imprisonment of an offender on his or her children or other dependents must be considered in the circumstances of each case and an appropriate balance struck between their welfare and the need to protect the community through the enforcement of the criminal law. The approach I prefer probably differs little in the results it yields, but in my respectful opinion it better explains that result and, in part at least, answers the illogicality which concerned Bray CJ in Wirth.

    [Footnotes omitted.]

    In our view, however, to adopt such approach is not to abandon the exceptional circumstances test, but to give it the content which belies its original formulation in the judgment of Wells J in Wirth. Where the hardship occasioned by a defendant’s family travels beyond what is appropriate in securing the community’s welfare and protection through the enforcement of the criminal law, it becomes special or uncommon – exceptional.

    [Footnote omitted.]

    [37] [2016] SASCFC 87.

    [38]   R v Constant [2016] SASCFC 87 at [66]-[67] (Nicholson, Lovell and Hinton JJ).

1. The joint reasons in Meisner make plain that an inducement to plead guilty is not objectionable provided that it does not defeat the accused’s freedom to choose whether or not to plead guilty. Further, the importance of maintaining that freedom is highlighted by the preparedness of the law to act upon the plea without more.

2. In R v Turner, in the course of providing guidance to judges and lawyers on plea bargaining, the Court of Appeal said:[47]

   The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential. Such cases, however, are in the experience of the court happily rare. What on occasions does appear to happen however is that a judge will tell counsel that, having read the depositions and the antecedents, he can safely say that on a plea of guilty he will for instance, make a probation order, something which may be helpful to counsel in advising the accused. The judge in such a case is no doubt careful not to mention what he would do if the accused were convicted following a plea of not guilty. Even so, the accused may well get the impression that the judge is intimating that in that event a severer sentence, maybe a custodial sentence would result, so that again he may feel under pressure. This accordingly must also not be done.

   The only exception to this rule is that it should be permissible for a judge to say, if it be the case, that whatever happens, whether the accused pleads guilty or not guilty, the sentence will or will not take a particular form, e.g., a probation order or a fine, or a custodial sentence.

   [47] [1970] 2 QB 321 at 327.

3. There is some debate in the authorities as to whether Turner should be read as establishing an absolute proposition or whether the effect of any indication is a matter to be considered in all the circumstances of the individual case.[48]  Authority in this State suggests that the latter approach is the correct approach.[49] I do not enter the debate in this case. The appellant does not seek to withdraw his pleas. He does not contend that his choice was overborne by the indication given by the special directions hearing judge. I refer to Turner to highlight the risks attendant upon an unsolicited sentence indication being given by a Judge. Sentencing courts cannot, and cannot be seen to, engage in any form of judicial plea bargaining.[50]

   [48]   In this regard see, for example, Guariglia v The Queen (2010) 208 A Crim R 49; The Queen v Holden [2009] VSCA 254; R v Pugh (2005) 158 A Crim R 302; R v Goodyear [2005] 1 WLR 2532; KCH (2001) 124 A Crim R 233; The Queen v Pinhassovitch (Unreported, Supreme Court of Victoria Appeal Division, Phillips CJ, Crocket and O'Bryan JJ, 7 February 1994).

   [49]   R v Pugh (2005) 158 A Crim R 302 at [69] (Doyle CJ), [119]-[120] (Bleby J).

   [50]   The Queen v Shannon (1979) 21 SASR 442 at 449 (3) (King CJ); Guariglia v The Queen (2010) 208 A Crim R 49 at 60 (Nettle JA).

4. In this case, the appellant’s argument is different. He contends that in sentencing him afresh the Court should take into account the fact that, where the indication substantially relieved him of anxiety at the prospect of immediate imprisonment, such anxiety has been revisited upon him through no fault of his own. He has, in a sense, been twice vexed.

5. The appellant’s argument finds support in a series of New South Wales cases dealing with Crown appeals against sentences imposed upon a plea of guilty entered after, and in the light of, a sentence indication. The position was summarised in R v Warfield by Hunt CJ at CL:[51]

   There has, however, been engrafted on to the principles applicable in what may be termed the ordinary Crown appeals a new ingredient where the appeal is brought against a sentence imposed following a sentence indication pursuant to Pt 12. As already indicated, it is part of that procedure pursuant to Pt 12 that the applicant is arraigned and the plea of guilty is entered only after the judge has indicated what sentence he or she intends to impose. In R v Chait (at 5), Gleeson CJ drew attention to the awkward position of the unsuccessful respondent to a Crown appeal who had pleaded guilty only because of the length of the sentence indicated and who may not have done so if the sentence had been the higher one which this Court says should now be imposed. In R v Cole (Court of Criminal Appeal, 29 March 1994, unreported) per McInerney J at 7, that fact was said to be a very important consideration in the exercise of this Court’s discretion to dismiss a Crown appeal despite the manifest inadequacy of the sentence: see also R v Niga (Court of Criminal Appeal, 13 April 1994, unreported) at 9. Most recently, in R v Glass (Court of Criminal Appeal, 24 May 1994, unreported) at 8-9, this Court said that, as a result of that fact, there is an added burden of double jeopardy in such appeals, reference being made (at 8-9) to the need, in all but the obvious case where there has been no miscarriage of justice, to permit the unsuccessful respondent to withdraw his plea of guilty. Mr Papayanni in the present case has coined the phrase “triple jeopardy”, a phrase which is not inapt.

   The element of “triple jeopardy” in the present type of case must obviously enough increase the unfairness or injustice which a successful Crown appeal may otherwise entail. The respondent to what I have termed the ordinary Crown appeal is occasioned distress and anxiety upon being informed that the Crown has appealed because he faces the prospect of receiving a longer sentence when he has already undergone the stress of standing for sentence once. The respondent to a Crown appeal from a sentence imposed following a sentence indication hearing, and who pleaded guilty only when the sentence to be imposed had been indicated, faces the prospect of far greater detriment — both a trial and the possibility of a substantially longer sentence because he did not plead guilty. He will also usually have served a period in custody awaiting the hearing of the Crown appeal, a period which may ultimately prove to have been unnecessary. In the present case, that has been a period in excess of nine months — a matter about which I shall have something to say later.

   [51] (1994) 34 NSWLR 200 at 210 (McInerney and James JJ agreeing).

6. From the appellant’s point of view the risk of imprisonment had significantly abated upon the special directions hearing Judge giving her indication, only to be reinstated. The prosecution’s cooperation in the appellant’s efforts to have the special directions hearing judge sentence the appellant would have reinforced his sense of relief. I accept he has, in a sense, been twice vexed. I have taken into account the anxiety caused to the appellant as a consequence of the effective withdrawal of the sentence indication in resentencing him.              

   The victim’s father’s attitude

7. S, her father and her mother each provided the court with a victim impact statement. S’s mother and father speak of the betrayal of trust perpetrated against them, the loss of family they have sustained, their fears for S and their commitment to providing her with love and support. S wrote of her fear of the appellant.

8. Counsel for the appellant noted that S’s father concluded his statement by indicating that he was not opposed to the appellant receiving a non-custodial sentence provided that strict controls were in place. S’s father acknowledged that his mother needed the love and support of the appellant to survive. He expressed the hope that the appellant would get the help he needs to ensure no other child is put at risk.

9. In determining the appropriate sentence to be imposed for an offence, s 10(1)(d) and (e) of the Sentencing Act oblige a sentencing court to have regard to the personal circumstances of any victim of the offence and to any injury, loss or damage resulting from the offending respectively. It may be said that neither provision represents a change from the longstanding acceptance by the common law that the impact of the offence upon the victim is relevant to the determination of the appropriate sentence.[52]

   [52]   R v Mallinder (1986) 23 A Crim R 179 at 183 (O’Bryan J); R v Webb [1971] VR 147 at 150-1 (Winneke CJ, Pape and Lush JJ).

10. Victim impact statements, as provided for by s 7A of the Sentencing Act, have become the accepted method by which the prosecutor’s obligation under s 7 of the Sentencing Act is discharged and the sentencing court is appraised of the information required for the purposes of s 10(1)(d) and (e) of the Sentencing Act. Such statements ensure that sentencing courts have a full appreciation of the consequences of criminal conduct for the victim of the subject crime and can properly weigh the harm sustained in arriving at the appropriate sentence.

11. That said, where a victim impact statement proffers an opinion as to the appropriate sentence, such opinion cannot be allowed to usurp the function of the sentencing court.[53] It is for the sentencing judge alone to decide the sentence to be imposed.[54] If a victim expresses forgiveness or support, such attitude may be relevant to assessing the long term consequences of the offending and may thereby have some mitigatory effect.[55] That may be seen as reflecting the long held view of the law that in terms of the harm caused, an offender takes his or her victim as they find them. However, that is not to accede to the victim’s opinion as to the appropriate penalty to be imposed.

    [53]   R v Hester [2007] VSCA 298 at [9] (Chernov JA); R v Skura [2004] VSCA 53 at [48] (Smith AJA), [12]-[13] (Eames JA); R v Palu (2002) 134 A Crim R 174 at [37] (Howie J, Levine and Hidden JJ agreeing); R v Newman; R v Simpson (2004) 145 A Crim R 361 at [80]-[86] (Howie J, McColl JA agreeing), [106] (Shaw J); R v Glen (Unreported, New South Wales Court of Appeal, Grove, Simpson JJ and Loveday AJ, 19 December 1994).

    [54]   GAS v The Queen (2004) 217 CLR 198 at [30] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

    [55]   R v Skura [2004] VSCA 53 at [48] (Smith AJA), [12] (Eames JA); R v Hester [2007] VSCA 298 at [9] (Chernov JA); R v Newman; R v Simpson (2004) 145 A Crim R 361 at [83] (Howie J, McColl JA agreeing), [106] (Shaw J); R v Glen (Unreported, New South Wales Court of Appeal, Grove, Simpson JJ and Loveday AJ, 19 December 1994); R v Hutchinson (1994) 15 Cr App R (S) 134 at 137.

12. Forgiveness may also be relevant to an assessment of the prospects of a defendant’s rehabilitation, particularly where the offending occurs in a family context.[56] But it must be understood that where an offence is committed it is committed against the community as a whole and the community is entitled to expect that the offender will be punished, that the community will be protected to the extent that the criminal justice system can do so, and that any penalty imposed will serve to deter others who are minded to offend against the community. Thus the opinion of the victim as to the penalty to be imposed is irrelevant.[57] It does not and cannot govern the determination of the appropriate penalty.

    [56]   R v Hester [2007] VSCA 298 at [9] (Chernov JA); R v Newman; R v Simpson (2004) 145 A Crim R 361 at [83]-[85] (Howie J, McColl JA agreeing).

    [57]   R v Pritchard (1973) 57 Cr App R 492 at 494.

13. There is a further aspect to sentencing in accordance with the opinion of a victim that must be borne in mind – that to do so may undermine the principle of equal justice. In Green v The Queen, French CJ, Crennan and Kiefel JJ said:[58]

    “Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order”. It has been called “the starting point of all other liberties”. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

    “Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.”

    [Footnotes omitted.]

    [58] (2011) 244 CLR 462 at [28].

14. To similar effect, in Lowe v The Queen, Mason J said:[59]

    Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.

    [59] (1984) 154 CLR 606 at 610-611.

15. It cannot be just that two offenders who commit the same offence in circumstances that are not materially different, having consequences that are not materially different, should receive different sentences because the victim of one nominates a particular penalty as an act of forgiveness, whilst the victim of the other nominates a harsher penalty as an act of vengeance. To interpose the opinion of the victim in the determination of the appropriate penalty in a given case is to have regard to an arbitrary consideration. The victim’s opinion is not a relevant difference. Thus to sentence in accordance with a victim’s desire that a particular penalty or type of penalty be imposed offends the principle of equal justice.

16. Here I should not be taken as in anyway undermining or detracting from the importance of courts receiving and understanding the consequences of offending for victims of crime. It is an understatement to say that the consequences of offending are highly relevant to the determination of the appropriate penalty and victims must be allowed to inform a sentencing court of those consequences for them.

17. I understand S’s father’s attitude as one moving from his understanding of the position of his mother, rather than suggesting that S is coping with what occurred in such a way as to suggest that the harm caused her is somehow ameliorated.

    Resentencing and the issue of suspension of sentence

18. The maximum penalty for the offence of aggravated indecent assault is 10 years of imprisonment. For the offence of procure an act of gross indecency it is 3 years of imprisonment.

19. I have addressed above the gravity of the appellant’s offending and referred to the harm that S, her mother and father report in their victim impact statements. The offending subject of each count was not, for each offence, at the lower end of the range of seriousness. The appellant kissed a five year old child on the vagina, albeit over her knickers, and had her kiss and touch his penis giving rise to his ejaculation. The gravity of the appellant’s offending and its consequences warrants imprisonment for a period that adequately punishes him and deters others.

20. The apology that the appellant made on appeal reinforces the sentencing Judge’s conclusion that he is remorseful and contrite.  I accept that he has accepted responsibility for his offending, but I note that that came late in the piece. For a not inconsiderable period of time, S and her family have had to labour under the anxiety of S having to give evidence and of the confusion and conflict within the broader family that his denial occasioned. That said, I accept that his pleas ultimately have spared his step-granddaughter and her parents from having to give evidence at a trial.

21. I am guarded in my assessment of the appellant’s prospects for rehabilitation. Whilst I accept, on the basis of Mr Balfour’s report, that the appellant is likely to respond to treatment, assuming he undertakes treatment, the explanation for his offending appears to lie in the stress of his then circumstances. Bearing in mind that between 1973 and this offending he has likely experienced stress of similar proportions on a number of occasions without offending, I find the explanation offered for his offending unconvincing. I am unable to conclude that what occurred can simply be considered an aberration. Nevertheless, the deterrent effect of the sentence I impose, his antecedents, his age and the knowledge of those who immediately surround him of his offending, satisfy me that it is unlikely that the appellant will offend again.

22. I acknowledge the character references received and the contribution the appellant has made to the community. I accept that contribution has not been fleeting but is of long standing. I also acknowledge that, despite the 1973 offence, the appellant has lead a responsible life, worked hard, provided for his family and been a good father. However, his prior good character and contribution must be viewed against the gravity of his offending. He abused his step-granddaughter for his own sexual gratification with an appreciation of the consequence of exposure to himself and, implicit therein, with foresight of at least some aspects of the consequences that could be occasioned to his step-granddaughter and family. He determined to risk those consequences.

23. I accept that imprisonment of the appellant will occasion significant hardship for his wife. As indicated above, I have taken this into account.

24. I have no doubt of the causal connection between the sentence indication given and the pleas entered. I have no doubt of the relief the indication would have brought to the appellant. Further, I do not doubt that he would have suffered anxiety afresh upon it being revealed that the special directions hearing Judge would not be sentencing him and that the initial risk of imprisonment to which he was exposed, he was again subject to. As I have said, in a sense, he has been twice vexed. True it is he could have withdrawn his plea, but the repeated vexation would remain. I have taken this into account.

25. I have also taken into account the fact that imprisonment will be more burdensome for the appellant because of the anguish he will be caused by him not being able to assist his wife when she is in need.

26. However, against all of these factors in the appellant’s favour, is the gravity of his offending and the need for the Court to impose sentences that protect and deter. In this regard, I refer to what fell from Doyle CJ in R v D[60] and from Kourakis CJ in R v MJJ; R v CJN.[61] This court must protect children. On this basis, I consider that a sentence of two years of imprisonment with a non-parole period of nine months, as proposed by Nicholson J, is appropriate. 

    [60] (1997) 69 SASR 413 at 423.

    [61] (2013) 117 SASR 81 at [84].

27. I do not think good reason exists to suspend the sentence. The fact that the appellant knowingly ran the risk of exposure, hoping that his threat and S’s innocence would prevent his detection, and knowingly subjected S to abuse that may result in long lasting harm to her, that has damaged her family and the broader family forever, prevents me, despite the hardship that will be occasioned the appellant’s wife and the many positives in his life, from suspending his sentence. A strongly deterrent response is required where offenders sexually abuse children.

28. I agree with Nicholson J that the Judge’s intervention order should be set aside and that there should be substituted in its place an order of this Court in identical terms. 

    Orders

    1.Appeal allowed.

    2.The sentence imposed by the District Court on 29 June 2016 is set aside.

    3.The appellant is sentenced to imprisonment for 2 years with a non-parole period of 9 months.

    4.The sentence subject of order 3 is to commence from today.

    5.The intervention order imposed by the District Court is set aside and in its place is substituted an intervention order made by this Court in identical terms.