R v Mackay
[2019] SASCFC 45
•9 May 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MACKAY
[2019] SASCFC 45
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Bampton)
9 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
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 - OTHER MATTERS
Appeal against sentence.
The appellant pleaded guilty to maintaining an unlawful sexual relationship with a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). The complainant was 17 years old at the time of the offending and was the appellant’s high school student. The appellant was sentenced to a head sentence of four years and five months and 19 days, with a non-parole period of two years and one month. The sentence was not suspended.
The principle grounds of appeal were that the sentencing Judge had incorrectly sentenced the appellant for uncharged acts of abuse and on an incorrect factual basis. The appellant also appealed on grounds that the sentence was manifestly excessive and that the sentencing Judge erred in not suspending the sentence.
Held per Nicholson J (Peek and Bampton JJ agreeing) allowing the appeal:
1. The impugned passages in the sentencing remarks are sufficiently ambiguous to cause real doubt as to the way in which the uncharged conduct was dealt with by the sentencing Judge.
2. An unacceptable risk exists that the severity of the sentence imposed may have been informed by an incorrect factual basis.
3. The sentence imposed by the District Court is set aside. The appellant is resentenced to imprisonment for three years with a non-parole period of 16 months.
4. The term of imprisonment in (3) is suspended upon the appellant entering into a good behavior bond.
Criminal Law Consolidation Act 1935 (SA) s 50; Sentencing Act 2017 (SA) s 71, s 96, referred to.
R v Horstman [2010] SASC 103; The Queen v De Simoni (1981) 147 CLR 383; R v Hibeljic [2018] SASCFC 35, discussed.
R v Ttikirou [2018] SASCFC 76, considered.
R v MACKAY
[2019] SASCFC 45Court of Criminal Appeal: Peek, Nicholson and Bampton JJ
PEEK J: I would allow the appeal. I agree with the orders proposed by Nicholson J and with his reasons.
NICHOLSON J.
Introduction
The appellant,[1] after pleading guilty, was convicted in the District Court of one count of maintaining an unlawful sexual relationship with a child and has appealed against the sentence imposed.[2]
[1] A Judge of this Court granted permission to appeal on 18 February 2019.
[2] Contrary to section 50 of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty for which is imprisonment for life.
The sentencing Judge imposed a head sentence of four years, five months and 19 days and fixed a non-parole period of two years and one month. The sentence was not suspended and commenced on 12 December 2018, the day of sentencing.
The appellant relies on the following grounds of appeal.
1.The Learned Sentencing Judge erred by sentencing the applicant for uncharged acts of abuse.
1A.The Learned Sentencing Judge erred in sentencing the appellant upon an erroneous factual basis, thereby causing the sentencing discretion to miscarry.
1A.1The Learned Sentencing Judge sentenced the appellant upon the basis that part of the charged act included an act of intercourse with the victim in the elevator of the appellant’s apartment.
1A.2It was not part of the prosecution case, nor was it part of the case that the appellant was required to meet, that an act of intercourse occurred in the elevator of the appellant’s apartment.
2.The sentence is manifestly excessive.
3.The Learned Sentencing Judge erred in not suspending the sentence.
The approach open to an appellate court on an appeal against sentence was explained by Kourakis J in R v Horstmann[3] in these terms.
On an appeal against sentence, the Court of Criminal Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King: a failure to take into account relevant matters; having regard to irrelevant matters; or unreasonableness (manifest excess or inadequacy). I shall refer to the first two errors as process errors and the last as an outcome error. Where either a process error or an outcome error has been made, the Court of Criminal Appeal may interfere.
Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.
In the case of a process error, the Court of Criminal Appeal may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error. In such a case, the Court of Criminal Appeal will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself. However, where a process error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.
(footnotes omitted)
Grounds 1 and 1A assert “process” errors. Ground 2 asserts an “outcome” error. Ground 3 can be dealt with as either a standalone process error or as a particular of ground 2.
[3] [2010] SASC 103 at [36]-[38] (emphasis in original).
For the reasons that follow, I would allow the appeal on the basis of grounds 1 and 1A and proceed to resentence the appellant. In the circumstances, it is not necessary to determine grounds 2 and 3.
Circumstances of and surrounding the offending
The prosecution provided the Judge with a written Summary of Factual Basis for Sentence agreed to by the appellant from which the following account is drawn. It is important to recognise that this document was presented[4] as an agreed factual basis for sentence not necessarily of the charged offence.
[4] Subject, of course, to any different or additional findings by the Judge based on the evidentiary materials accepted by and submissions made to her Honour.
The appellant was a high school English teacher. The victim was a student in the appellant’s year 12 English class. At the time of the offending, the second half of 2017, the appellant was 42 years old and the victim, born on 11 June 2000, was 17 years old.[5] He was due to complete his final year of high school later that year.
[5] Ordinarily, the age of consent with respect to sexual offending is 17. See, for example, section 49(3) of the Criminal Law Consolidation Act 1935 (SA). However, where the accused is in a “position of authority”, such as a teacher vis a vis a pupil, see subsections 50(12) and (13) of the Act, an offence pursuant to section 50 will be committed where the victim is under 18.
The charged offence was particularised on the Magistrates Court Information to which the appellant pleaded in these terms.
Between the 1st day of November 2017 and the 2nd day of November 2017 at … Being an adult maintained an unlawful sexual relationship with [the victim] a child. Section 50(1) of the Criminal Law Consolidation Act 1935.
The particulars have been infelicitously drawn – there is no “between” 1 November and 2 November. It is common ground that the particulars of the charged offence were directed to the parties’ conduct which took place on 1 and 2 November 2017. However, the relationship extended over a longer period and included both pre-offence and post-offence conduct by the appellant of a highly discreditable and, in large part, criminal nature.
In October 2017, the appellant began emailing the victim in relation to his school work using their school email accounts. In time, the appellant provided her personal mobile number to the victim. They started to communicate by text message and Snapchat. The communications became erotic and sexually explicit.
The appellant told the victim that she was masturbating whilst the two of them were engaged in these conversations and asked the victim to masturbate himself. The appellant sent photographs of her naked breasts and bottom and requested that the victim send photos of his naked genitals which he did.
On 1 November 2017, the victim met the appellant at her suburban apartment and they engaged in penile-vaginal sexual intercourse multiple times. The appellant masturbated the victim until he ejaculated and the victim inserted his fingers into the appellant’s vagina. The two walked around the local area holding hands and lay on the grass and touched each other’s genitals. They went back to the appellant’s apartment building, kissed in the elevator, and returned to the appellant’s apartment. In the apartment, they again engaged in sexual intercourse. The victim slept the night at the appellant’s apartment and went to school late the next day, 2 November 2017. The appellant did not go to work; she reported to her workplace that she was sick.
After this encounter on 1 and 2 November 2017, the appellant and the victim continued to see each other and engaged in various forms of sexual activity during the ensuing month until the appellant’s arrest on 5 December 2017. Their sexual interactions included the appellant performing fellatio upon the victim on various occasions in the appellant’s apartment, in the appellant’s vehicle, in the victim’s house and in public areas around Adelaide.
The appellant’s neighbour observed, on a CCTV monitor in her apartment, the appellant and the victim kissing in the lift foyer on three separate occasions. She took photographs of the video footage on her mobile phone.
On 4 December 2017, the victim’s parents met with the victim’s high school principal. During this meeting, concerns were raised over the contact between the appellant and the victim. The school principal subsequently made a report to the police. The victim’s mother confronted the victim that same day and the victim admitted that he was in a sexual relationship with the appellant and that he was in love with her. The appellant was arrested the next day.
The period during which the appellant maintained the unlawful sexual relationship, as charged, occurred from approximately 6:00pm on 1 November 2017 to approximately noon or soon after on 2 November 2017; a period of approximately 18 to 20 hours. The appellant was not charged with respect to the sexual conduct which occurred thereafter.
The Judge’s approach to sentence
In her sentencing remarks, the Judge summarised the circumstances of and surrounding the offending in chronological sequence. It appears that this was taken almost directly from the agreed Summary of Factual Basis for Sentence. It included a summary of both the charged and the uncharged conduct, beginning with the grooming of the victim prior to 1 and 2 November 2017 and concluding with the post-offence sexual conduct during the ensuing month or so.
The Judge summarised the four victim impact statements from the victim, his parents and his brother that had been read in court. Her Honour outlined the personal circumstances of the appellant including by reference to the reports and recommendations of the two psychologists, Ms Beltrame and Mr Balfour.
The Judge rightly emphasised the seriousness of the offending and the need for deterrence, particularly general deterrence, when sentencing for this type of offending. These and other matters were canvassed by the Judge in her remarks as follows.
You know that your offending was a gross breach of trust. Your victim was your 17-year-old student. You breached the trust of him as his teacher. You breached the trust of his parents and siblings who had a right to expect he would be safe at school. You breached the trust of your employer. You breached the trust of the school community.
Your behaviour causes a feeling of outrage, quite rightly, in the community.
You were at a stage in your life where you were overwhelmed by personal grief, sadness, confusion and feelings of inadequacies. At the time, however, your behaviour was manipulative and unforgiveable. In light of what you were doing and the way you were doing it, it is evident to me that you could not have been thinking straight. You seemed to have lost touch with reality and were living in some sort of fantasy land. You behaved in a way that was grossly out of character and has caused untold damage to many, particularly devastating and long lasting to your victim and his family. You have also let yourself down badly. You know that.
I accept you now have genuine remorse and contrition. That is evident from your plea of guilty at an early stage, your engagement with psychologists and your apology in court. You have already made progress towards your rehabilitation. You have gained some insight by accepting professional help. You have the support of your family and a new relationship. I think your prospects of rehabilitation are good. Of course, the Teachers Registration Board has cancelled your registration. You know and understand you will never be able to work as a teacher again. You have taken steps towards working as a research academic in the future by starting an Honours degree in art which has now been deferred pending sentence.
General deterrence looms large in sentencing for this offending. There is a need also for personal deterrence but less so, in my view, in your circumstances. There is a paramount need to protect the safety of the community from this type of offending but I do note that you are now considered to be at a low risk. Because of the serious nature of this offending there is no doubt a sentence of imprisonment is required.
The Judge’s starting point for the head sentence was imprisonment for six years and six months. Her Honour reduced this by 30 per cent, on account of the appellant’s early guilty plea, to four years, six months and 19 days.[6] After allowing a further one month credit on account of nine days spent in custody and 53 days spent on home detention bail, the Judge imposed a head sentence of four years, five months and 19 days. A non-parole period of two years and one month was fixed.
[6] Given the timing of the plea, 30 per cent was the maximum discount available in accordance with section 40 of the Sentencing Act 2017 (SA). There is no challenge to the Judge’s exercise of the discretion to allow the maximum discount available.
In declining to suspend the prison sentence, her Honour gave the following reasons.
Your counsel has submitted there is good reason to suspend your sentence. I know you are terrified of gaol. Mr Balfour reports that you found being in prison very frightening and stayed in isolation for the nine days you were there. However, I do need to sentence you on the basis that any mental health problems you might experience in custody can be adequately managed within prison health services.
I hear that you are very sorry for the pain and suffering you have caused the victim and his family. You have shown insight into your gross breach of trust. You have lost the ability to ever pursue your chosen career. You have good prospects of rehabilitation.
But your position of trust, abuse of that trust and the effect upon the victim and his family are simply too serious. There is an important need for the sentence to deter others and I do not believe suspension of the sentence would adequately reflect that requirement.
The impact upon your victim, as I have said, and his family have been significant. Weighing up all the other factors and in all the circumstances including those personal to you, I am unable to find good reason to suspend that sentence of imprisonment.
In declining to order that the sentence be served by way of home detention, the Judge gave these reasons.
Your counsel asked me to consider ordering that you serve your sentence of imprisonment on home detention. This is a serious sexual offence. Home detention according to the legislation is not available unless special reasons exist. Those special reasons are set out in the legislation. Having read the Second Reading Speech and debate, I consider special reasons are confined to those defendants of advanced age or infirmity who are no longer an appreciable risk to the community and the interests of the community are better served by home detention rather than custody. You do not fit that criteria.
If I am wrong about my interpretation of that provision I would not have ordered home detention in any event, for the same reasons I have expressed in considering the suspension of your sentence.
Ground 1 - The Judge’s approach to the uncharged conduct
The appellant submitted that the Judge sentenced the appellant for criminal conduct with respect to which she was not charged and convicted. As such, the Judge took into account an irrelevant consideration and committed a process error as earlier described.
According to The Queen v De Simoni,[7] a Judge, when imposing sentence, is not to take into account circumstances of aggravation which would have warranted conviction for a more serious offence.[8] Gibbs CJ (with whom Mason and Murphy JJ agreed) said this.[9]
[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
[7] [1981] HCA 31; (1981) 147 CLR 383.
[8] See also the recent statement of principle in subsection 10(1)(d) of the Sentencing Act 2017 (SA).
[9] The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389.
The charged offending took place over the particularised 18 to 20 hour period. However, the appellant contends that the Judge erroneously sentenced for the post-offence criminal conduct when sentencing the appellant for the charged offence. The appellant contends that the Judge did not take the special care required to ensure that the De Simoni principle was not infringed. It was submitted that this error likely resulted in the imposition of a more severe sentence.
The resolution of the issue whether the Judge did infringe or may have[10] infringed the De Simoni principle is to be considered having regard to the nature of the particular offence charged in this case. Where an accused is charged with one or more offences each involving a single particularised act, the distinction between the charged offence(s) and other discreditable, including criminal, conduct usually is quite apparent. However, in this case the accused was charged with the more amorphous offence of maintaining an unlawful sexual relationship with a child. A precise particularisation, or description within the statement of the charge, of the metes and bounds of the criminal conduct to which the accused must plead assumes real significance. In the present case, the prosecution could have particularised the charged offence as embracing relevant sexual conduct over a period much longer than the 18 to 20 hours actually particularised and to include, at least,[11] the post-offence repeated acts of sexual intercourse over the ensuing month.
[10] See R v Ttikirou [2018] SASCFC 76 at [41], discussed further below.
[11] It may be, but without deciding, that aspects of the pre-offence “grooming” conduct (such as procuring the victim to masturbate himself, see section 63B of the Criminal Law Consolidation Act 1935 (SA)) also fell within the relevant definitions in the Criminal Law Consolidation Act 1935 (SA) so as to engage the offence under section 50.
This is not to suggest that the whole course of conduct set out in the “Summary of Factual Basis for Sentence” is not relevant to the sentencing task. Depending on the circumstances, the whole course of conduct can be material to such matters as whether or not the offending conduct was isolated (bearing on the issue of leniency) prospects for rehabilitation and the need for personal and general deterrence. However, the accused is not to be sentenced, that is, punished for this additional admitted conduct with respect to which she had not been charged.
To make her contention that she had been sentenced for uncharged conduct good, the appellant relies on two passages in the sentencing remarks. The first passage is in these terms.
Sometime in October of 2017 you began communicating via email with your 17-year-old student. You were his Year 12 English teacher. You suggested the conversation continue via text message. You also used Snapchat to communicate with him. Your conversation started about schoolwork, but soon became sexually explicit.
On 1 November 2017, the victim met you at your home in Glenelg North. Sexual activity occurred including sexual intercourse multiple times. Afterwards, you walked around Glenelg holding hands. You lay in a public reserve and touched each other.
On the way back to your apartment, you kissed and had sex again in the elevator. The victim stayed the night in your bed. The next morning you had sexual intercourse again. You called in sick to work that day. The victim went to school late.
Over approximately a month, you engaged in sexual activity with the victim many times including in your car, at your house, at his house and in public areas around Adelaide.
The first paragraph addresses the pre-offence behaviour, the second and third paragraphs address the charged conduct and the fourth paragraph addresses the post-offence uncharged conduct. The passage occurred at the beginning of the sentencing remarks immediately after her Honour had identified the offence in general terms (“one count of persistent sexual exploitation of a child”)[12] but without identifying the particularised time period.
[12] Her Honour used the language of the offence as proscribed in an earlier version of section 50. There are potentially material differences between the offences created by the earlier and current versions of section 50 but nothing turns on her Honour’s choice of language on the facts of this matter.
On one reading of the passage the Judge was outlining the factual basis of the offence committed by the appellant that had just been identified. There is no express characterisation of pre-offence, offence and post-offence conduct, nor is there any express articulation (in this passage or elsewhere in the remarks) of the separate sentencing purposes to which these three types of conduct might relate. This adds support to the appellant’s contention.
The appellant submits that the Judge’s reference to the sexual conduct during the period of “approximately a month” in the fourth paragraph of the above passage is not sufficiently set apart or materially distinguished from the sexual conduct which occurred over an approximately 18 to 20 hour period, as described in the second and third paragraphs.
On the other hand, the respondent submits that the passage is clearly, and intentionally, broken into paragraphs which separate, chronologically, the charged conduct from the uncharged conduct. The respondent further submits that the inclusion of labels “charged conduct” and “uncharged conduct” or similar was unnecessary. Indeed, the fact that the Judge did not use language to indicate that the charged offence was “aggravated” or “made more serious” by the uncharged conduct is sufficient to demonstrate that her Honour did not sentence in this way. Rather, as the respondent further submitted, the Judge was entitled to, and it should be inferred that she only did, use the uncharged conduct in assessing what, if any, leniency might be afforded the appellant.
The second passage relied on by the appellant is the italicised two sentences in the following paragraph.
Sexual offending against a teenage child might attract a sentence in the vicinity of 10 years imprisonment, depending on all the circumstances. I have considered all the circumstances. Here, your criminal conduct took place over a fairly confined period of time, with some grooming earlier on. I take into account that it was an emotionally charged and sexually intense month. I take into account that your victim was at the upper end of the age range for this offending and it was close to the end of the school year and the end of his time at that school. Nevertheless, he had been your student that year and he was still your student when your offending occurred. He should have been safe at school, there to develop and mature in his own time.
The two sentences might be parsed in a number of ways, the two most obvious being those respectively contended for by the appellant and the respondent. It is to be remembered that whilst it will be necessary to analyse sentencing remarks, as the express manifestation of a Judge’s reasoning process, in order to resolve a ground of appeal that asserts a process error, sentencing remarks, ordinarily, are not to be analysed to the same degree as might apply to considered reasons for judgment.
The appellant submits that the word “it” in the phrase “it was an emotionally charged and sexually intense month” is a direct reference back to the phrase “fairly confined period of time” in the preceding sentence. In other words, according to the appellant, the fairly confined period of time over which the “criminal conduct” took place was the emotionally charged and sexually intense month being the month of sexual conduct as referred to in the fourth paragraph of the first passage set out earlier.
Of course, the phrase “criminal conduct”, itself, can be seen as ambiguous. It might have been a reference to all of the charged and post-offence conduct or only to the charged conduct and notwithstanding and independently of the reference in the next sentence to the sexually intense month. The appellant submits that the proper inference to be drawn is that the Judge was referring to all of the “criminal conduct” during the month of November as the conduct for which the appellant was to be sentenced. This inference gains strength from the fact that the sentences immediately preceding the impugned passage were in these terms.
Sexual offending against a teenage child might attract a sentence in the vicinity of 10 years imprisonment, depending on all the circumstances. I have considered all the circumstances.
On the appellant’s case, the Judge was announcing that she was about to discuss and fix the sentence for the actual offence committed.
The respondent submits that the reference to “it” was simply a reference forward to the ensuing month itself and what had gone on during that month. It was not a reference back to the “fairly confined period of time” in the preceding sentence.
As I understand the respondent’s contention, the Judge, in this paragraph, was, in fact, distinguishing the three periods of the appellant’s conduct and doing so for different proper purposes. To understand this contention it will be helpful to set out again the whole of the relevant paragraph together with the first sentence of the next paragraph.
Sexual offending against a teenage child might attract a sentence in the vicinity of 10 years imprisonment, depending on all the circumstances. I have considered all the circumstances. Here, your criminal conduct took place over a fairly confined period of time, with some grooming earlier on. I take into account that it was an emotionally charged and sexually intense month. I take into account that your victim was at the upper end of the age range for this offending and it was close to the end of the school year and the end of his time at that school. Nevertheless, he had been your student that year and he was still your student when your offending occurred. He should have been safe at school, there to develop and mature in his own time.
But for your plea of guilty I would have sentenced you to six years, six months imprisonment.
On the respondent’s case, the Judge in this paragraph, in a shorthand way, summarises “all the circumstances”. First her Honour refers to the “fairly confined period of time” during which the charged offending took place – by inference, the 18 to 20 hours. Her Honour then refers to the pre-offence “grooming”. Her Honour next refers, as a separate matter, to the “sexually intense month”. On this construction, the word “it” is not a reference back to the “fairly confined period of time” in the previous sentence but is shorthand for “the ensuing month”. As such, the sentence would read.
I take into account that [the ensuing month] was an emotionally charged and sexually intense month.
Thereafter, consistently with the respondent’s analysis, the Judge refers to other relevant circumstances including the age of the victim and so on before proceeding to fix the head sentence at something less than the initially identified “vicinity of 10 years imprisonment”. Indeed, the respondent submits that the fact that the Judge started at six years and six months, well below the 10 years to which she had earlier referred, supported the contention that her Honour did not have regard to the post-offence conduct in an incorrect manner.
If this is the correct analysis of this paragraph in the Judge’s reasons, her Honour will not have sentenced on the basis of all the criminal conduct as described in the first passage relied on by the appellant.
There is force in the submissions of the appellant to the effect that, having regard to those aspects of the structure and content of the sentencing remarks to which attention has been directed, the Judge’s approach in the critical respect, at the least, has not been made clear.
The respondent, in essence, submits that there is nothing express in the remarks to suggest that the Judge regarded and used the post-offence conduct as aggravating the offence conduct and that the passages in the remarks support a conclusion to the contrary. There are two difficulties with this submission.
First, it assumes that the complaint is limited to one that, whilst her Honour sentenced only with respect to the offence conduct, she treated it as aggravated by the post-offence conduct. However, the premise that her Honour only sentenced for the offence conduct (whether or not aggravated by post-offence conduct) is, itself, not clear from the remarks. The Judge would not need to have considered whether or not aggravating features existed if she had (wrongly) included the whole of the appellant’s conduct as the factual basis for the charged offence of maintaining an unlawful sexual relationship with a child. The remarks are quite consistent with this latter approach. To this extent, the complaint under appeal ground 1 is along the lines of the Judge having sentenced on an incorrect factual basis.
The second difficulty with the respondent’s submission is that, at best, the sentencing remarks are ambiguous as to the way in which the ensuing month of sexual activity informed the Judge’s reasoning to sentence. The reasoning in R v Tranter (No 2); R v Compton[13] and R v Ttikirou[14] is apposite. As such, there is an unacceptable risk that the Judge incorrectly took into account the post‑offence conduct either as part of the factual basis for the offence for which the appellant was sentenced or as an aggravating feature of the offence committed on 1 and 2 November 2017. Either way, and if so, this would have been tantamount to a finding of guilt and sentencing for an offence or offences not prosecuted.
[13] [2014] SASCFC 66 at [62] (The Court, comprising Kourakis CJ, Peek and Stanley JJ).
[14] [2018] SASCFC 76 at [40]-[41] (Kelly J, with whose reasons Doyle and Hinton JJ (on this issue) agreed).
The Judge may well have taken the post-offence conduct into account in a correct manner, for example, as showing that the offence committed was not isolated, relevant to such questions as leniency and prospects for rehabilitation. However, like in Ttikirou, the sentencing remarks in the impugned passages are sufficiently ambiguous to cause real doubt as to the way in which the post-offence conduct was dealt with.
I would allow the appeal on the basis of appeal ground 1. In exercising the sentencing discretion afresh, I would impose a different sentence as indicated later in these reasons.
Ground 1A – Factual Error
The appellant contends that the Judge sentenced on an incorrect factual basis by including a finding that the appellant had intercourse with the victim in the elevator as part of the factual basis for sentence. The complaint stands independently of ground 1 because her Honour includes the finding as part of the 1 and 2 November 2017 conduct.
Where a judge sentences on a mistaken factual basis, an appeal court may re-exercise the discretion to sentence the appellant if the mistake was material. The approach open to an appellate court where a primary decision maker has taken into account an irrelevant consideration is that as described by Kourakis J in the passage from R v Horstmann[15] set out earlier in these reasons.
[15] [2010] SASC 103 at [36]-[38].
The Judge recorded in the third paragraph of the first passage from the sentencing remarks extracted earlier, an incorrect factual assertion, namely,
On the way back to your apartment, you kissed and had sex again in the elevator.
The respondent conceded that the reference to having sex in the elevator constituted a factual error. It likely came about as a result of, arguably, ambiguous phrasing in the Summary of Factual Basis for Sentence.
However, the respondent submits that this error of fact was not material and should not result in a resentencing of the appellant. The respondent contends that, given the number of acts of sexual intercourse which occurred in the appellant’s apartment over the 18 to 20 hour period of offending, this error, being merely one as to the location of one of the acts, could not have been material in the sense that it would not have caused her Honour to sentence more severely than otherwise.
The appellant submits that this particular error of fact must be regarded as material. Such a location for sexual intercourse, an elevator in a building accessible to other residents and to members of the public including young children, introduced an element of brazenness, not otherwise present on the true facts of the offending. Such brazen sexual intercourse in a public place would render the offending more serious than it truly was and might have attracted a more severe penalty from the Judge than otherwise.
I am satisfied that the factual error was potentially material. It would have been open to a sentencing judge to treat the brazen, public and offensive (if observed by a member of the public) nature of such conduct as an aggravating feature of the offence committed on 1 and 2 November 2017. Whether the Judge did or did not take this approach cannot be discerned from the remarks. As such, there, again, is an unacceptable risk that the severity of the sentence imposed may have been informed by this incorrect factual basis. I would allow the appeal on the basis of appeal ground 1A.
Grounds 2 and 3 - Manifest excess and failure to suspend
As I would allow the appeal on grounds 1 and 1A and proceed to resentence, it is unnecessary to resolve grounds 2 and 3. However, brief mention should be made of one matter.
The appellant made submissions before the Judge directed to a favourable exercise of the discretion, pursuant to section 96 of the Sentencing Act 2017 (SA), to suspend the prison term to be imposed on condition that the appellant enter into a bond to be of good behaviour.[16] However, the appellant also submitted that in the absence of being satisfied of good reason to suspend, the Judge also had, and should exercise, the discretion pursuant to section 71 of the Sentencing Act 2017 to order that the prison sentence be served by way of home detention.
[16] The chapeau to subsection 96(1) is in these terms: “Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—”.
The Judge declined to suspend under section 96 and indicated that, if home detention were a form of order available in the circumstances, she would decline to allow that also. However, her Honour expressed the view that the power to order home detention was, in any event, not available and provided the brief reasons set out earlier, based on her construction of section 71 and, in particular, subsection 71(4).
Section 71, insofar as presently material, is in these terms.
(1)Subject to this section, if—
(a) a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 4 Division 2; and
(c) the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may order that the defendant serve the sentence on home detention (a home detention order).
(2) The following provisions apply to a home detention order:
…
(b) a home detention order must not be made if the defendant is being sentenced—
…
(ii)as an adult for a serious sexual offence unless the court is satisfied that special reasons exist for the making of a home detention order;
(3)…
(4)In deciding whether special reasons exist for the purposes of subsection (2)(b)(ii), the court must have regard to both of the following matters and only those matters:
(a) whether the defendant's advanced age or infirmity means that the defendant no longer presents an appreciable risk to the safety of the community (whether as individuals or in general);
(b) whether the interest of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody.
It is common ground that the appellant had committed a “serious sexual offence” as defined in subsection 71(5) such that the Court had to be satisfied of special reasons in accordance with subsection 71(2)(b)(ii). The ambit of “special reasons” for this purpose is constrained by subsection 71(4). In short, the Judge took the view that by virtue of the terms of the chapeau to subsection 71(4) the requirements of paragraphs (a) and (b) had to be applied conjunctively and not disjunctively.
The appellant has not included a ground of appeal relating to this issue. The appellant complains only of the failure to suspend pursuant to section 96. However, there is potential for the issue to be revivified in the event that the appeal were to be allowed and the appellant resentenced. For this reason, each of the parties was asked to provide a supplementary written submission dealing with the proper construction of subsection 71(4). As it happens, I have reached the view, for the reasons I will give shortly, that the sentence I would impose should be suspended pursuant to section 96. In the circumstances, it is unnecessary and would not be appropriate to express a view as to the correct construction of subsection 71(4).
The appellant’s personal circumstances
Before proceeding to resentence it will be helpful to review the appellant’s personal circumstances. At the time of the offending, the appellant was 42 years of age. She is now 44. She has no prior criminal convictions.
The appellant described having a happy and secure upbringing. She is the second oldest of five children and her parents had a long and happy marriage. In 2016, the appellant’s father died at the age of 65 after being diagnosed with terminal cancer. The appellant was close to her father and continues to grieve over his loss. The appellant married in 2001 and has two children from this relationship who were 6 and 10 years of age in 2018. The appellant’s marriage ended in October 2017.
The appellant was not sexually, psychologically or physically abused during her childhood or during her adult relationships. She left school after completing year 11 at the age of 17 and later completed a hairdressing apprenticeship. When she was 28 years old, she completed a Diploma in Business through TAFE SA. In 2001, the appellant enrolled in a full time Bachelor of Education and Arts at the University of South Australia. She excelled in her university studies. Following her graduation with qualifications as a teacher, the appellant obtained short teaching contracts with several schools, including the school where the offending behaviour later occurred in 2017.
Following her arrest on 5 December 2017, the appellant was remanded to the Adelaide Women’s Prison and was placed in isolation for her protection. After nine days, she was released on home detention bail.
At the request of the appellant’s counsel, the clinical psychologist, Mr Richard Balfour, provided a report dated 6 November 2018. Mr Balfour has supplied a comprehensive history and analysis of the appellant’s personal circumstances. He found that the appellant was unlikely to re-offend for the following reasons:
(i)he does not believe that the appellant suffers from paedophilia;
(ii)he classified the appellant’s sex offending behaviour as being sexual displacement and concluded that her primary sexual interest is in adult males and not adolescent males;
(iii)he found the appellant to be remorseful;
(iv)the appellant does not have an entrenched history (or, I would add, any history) of child sex offending behaviour;
(v)the seriousness of the appellant’s legal circumstances has had a major salutary effect upon her;
(vi)the appellant values the relationship with her two young daughters;
(vii)the appellant does not suffer from any major psychopathology that would complicate her rehabilitation and predispose her to further offending behaviour;
(viii)the type of psychosocial problems that have contributed to the appellant’s offending behaviour would respond favourably to strict community supervision and assertive case management;
(ix)with optimal psychological therapy, the appellant would be able to overcome her psychological inadequacies;
(x)the appellant’s offending occurred in response to a unique constellation of situational psychosocial stressors that are unlikely to occur again; and
(xi)the appellant possesses a number of positive assets that can be used as protective factors during her rehabilitation.
Mr Balfour recommended that the appellant participate in a supervised, structured rehabilitation program, and in cognitive-behavioural therapy with a psychologist. He also recommended that she be referred to a psychiatrist to assess her suitability for medication to treat her depression. Mr Balfour also recommended that she be referred to Owenia House to participate in the State’s community based child sex offender rehabilitation program.
It is important to consider Mr Balfour’s recommendations with the understanding that his report was based on written materials provided to him together with his interview of the appellant which took place in March 2018, that is, well before the appellant commenced her therapeutic treatment sessions with Ms Kerrie Beltrame referred to below.
It is also important to appreciate some of the factors that, according to Mr Balfour, caused the appellant to behave as she did; not in any way to be seen as justifying this behaviour, but as relevant to the issues of personal deterrence, her prospects for rehabilitation and as indicators of future counselling and treatment needs. For reasons explained by Mr Balfour, but unnecessary to recount here, the appellant has remained socially and sexually immature and in a state of arrested psychological development throughout her adult years. Leading up to the offending, the appellant’s married life had become intolerable and extremely stressful. According to Mr Balfour, the appellant was feeling lonely and abandoned and was depressed and psychologically vulnerable. She developed an infatuation with the victim and made unrealistic, fanciful plans for their future. She found the victim’s attention flattering and self-affirming. To use the Judge’s words, the appellant was “living in some sort of fantasy land” and “behaved in a way that was grossly out of character”.
In April 2018, the appellant was referred by her general practitioner to a psychologist, Ms Kerrie Beltrame, to undertake a mental health treatment plan for depression and anxiety related to the appellant’s sexual offending and relationship difficulties. Ms Beltrame provided a report dated 30 October 2018. As at the date of the report, the appellant had attended nine sessions with Ms Beltrame and had almost completed the proposed course of therapy.
Ms Beltrame found that the appellant had made significant treatment gains. The appellant had demonstrated an understanding of the reasons for her offending and the impact that the offending had on the victim, his family, his friends and the wider community. The appellant’s participation in the treatment program appeared to increase significantly her insight into and understanding of her sexual offending. As a consequence, Ms Beltrame made no recommendation for further treatment related to the sexual offending.
The Judge also had before her a number of testimonials as to the appellant’s good character. The appellant continues to have the support of her new partner, friends and family.
Resentence
The offence committed by the appellant is an extremely serious one. It carries a maximum penalty of life imprisonment. For the reasons summarised by the Judge, including in particular the appellant’s gross breach of trust and the severe harm caused to the victim at a very important time in his school life, the circumstances of the appellant's offending on 1 and 2 November 2017 render the offence, as committed, a serious example of its type. The pre-offence and post-offence conduct indicate that the offence committed was not isolated although the overall course of conduct persisted for a relatively short period. A substantial prison sentence is called for. Nonetheless, there are a number of features, some identified by the Judge in her remarks and others referred to below when I consider the question of suspension, which support a more lenient approach being adopted than otherwise might have been the case.
In fixing a head sentence, I would start at imprisonment for five years. I would reduce this by 30 per cent to three years and six months on account of the early plea of guilty. I would start with a notional non-parole period of 22 months. However, prior to being sentenced in the District Court the appellant had spent nine days in custody and 53 days on home detention bail. Since being sentenced on 12 December 2018, the appellant has spent a further approximately five months in custody. I would allow six months credit for time served in custody and on home detention bail resulting in a head sentence of three years and a non-parole period of 16 months.
I turn to the difficult question of whether this sentence should or should not be suspended. Subsection 96(1) of the Sentencing Act 2017 provides for and establishes the test for the discretion to suspend a prison sentence.
(1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the conditions of the bond referred to in subsection (2); and
(c) to comply with any other conditions of the bond as the court thinks appropriate and specifies in the bond.
The following subsections provide for a number of specific constraints on the availability of the discretion to suspend. None are of relevance to this matter. As such, the only question to be addressed is whether good reason exists to suspend. The proper approach to addressing this question (by reference to the same test earlier prescribed by section 38 of the Criminal Law Sentencing Act 1988 (SA)) was summarised by Doyle J (with whose reasons Peek and Blue JJ agreed) in R v Hibeljic.[17]
In determining whether to suspend a sentence of imprisonment under s 38 of the Sentencing Act, there is but one question; namely, whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentence.[18] Further, while regard must be had to all the relevant sentencing considerations, it is also true that it is appropriate to have particular regard to the factors personal to the appellant at this stage of the sentencing exercise. These factors may thus weigh more heavily at this stage of the sentencing exercise.
(footnotes in original)
[17] [2018] SASCFC 35 at [64].
[18] Wessling v Police (2004) 88 SASR 57 at [26]-[27], as applied, for example, in R v O’Toole [2013] SASCFC 18 at [50] and R v Skinner (2016) 126 SASR 120 at [81].
Plainly the seriousness of the offending and the need to give effect to principles of general deterrence tend to a conclusion that the sentence in this case ought to be served, and this was the Judge’s view. However, there are a number of factors that support a favourable exercise of the discretion. They include:
(i)The appellant is a first offender; she had reached the age of 42 without having committed a criminal offence of any nature.
(ii)The appellant has none of the criminogenic factors that might predispose a person to criminal conduct; she has no paedophilic traits, does not have a problem with drugs or alcohol and is not afflicted by mental illness (other than reactive depression) or antisocial or personality disorder.
(iii)There would appear to be a minimal likelihood that the appellant will offend again, either sexually or in any other respect, in the future.
(iv)The appellant voluntarily engaged in and has successfully completed a course of therapeutic treatment directed at her sexual offending.
(v)The appellant is remorseful and genuinely contrite. She has developed empathy for her victim and an understanding of the severe harm she has caused him and his family.
(vi)The appellant has experienced severe extra curial punishment. She has an excellent work history and strong work ethic but has now lost, almost certainly for good, her career as a high school teacher. She also committed an offence of a type and in particular circumstances that are likely to have brought upon her significant and ongoing public shaming.
(vii)The appellant has two very young daughters whom she has not seen since entering custody on 12 December 2018. The children are at a very important age and the effect on them of being unable to visit or only able to visit their mother sporadically for a further 16 months is a relevant consideration.
(viii)The appellant has now spent a substantial period, in the order of five months, in prison which, of itself, is a real punishment.
(ix)The appellant has the strong support of family and friends.
(x)The psychologist reports strongly support the conclusion that the appellant presents no risk to the community.
As earlier indicated and as the matters just outlined demonstrate, the need for personal deterrence is minimal. In addition, the matters in (vi), (vii) and (viii) and a suspended prison term of three years with a non-parole period of 16 months, together, will provide a significant general deterrent effect.
On balance, although not without some hesitation, I have concluded that there is good reason to suspend the term of imprisonment I would impose in the circumstances of this offence and this offender. The fact that the appellant has now served approximately five months in custody, a consideration not available to the Judge, carries significant weight. I would order that the prison term be suspended on the condition that the appellant agrees to enter into a bond to be of good behaviour for three years. The conditions of the bond should be those that usually apply together with a condition that the appellant be under the supervision of a community corrections officer for the first two years and a condition that the appellant participate in such further sexual behaviour counselling and therapeutic programs as her Community Corrections officer might reasonably require. In this respect, I would direct that copies of the reports of Mr Balfour and Ms Beltrame be made available to the Community Corrections officer or officers who come to supervise the appellant.
Conclusion
I would make the following orders.
(i)The appeal be allowed.
(ii)The sentence imposed in the District Court be set aside.
(iii)The appellant be sentenced to imprisonment for three years with a non-parole period of 16 months.
(iv)The term of imprisonment in (iii) be suspended upon the appellant entering into a bond to be of good behaviour on the terms identified in these reasons.
(v)Copies of the psychological reports of Mr Balfour and Ms Beltrame be provided to the Community Corrections officer or officers charged with the supervision of the appellant.
BAMPTON J: I would allow the appeal and resentence the appellant as proposed by Nicholson J for the reasons given by his Honour.
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