R v Marien - [2011] SASCFC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MARIEN
[2011] SASCFC 116
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
26 October 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
Prosecution appeal against sentence - defendant pleaded guilty to persistent sexual exploitation of child - sentenced to five years' imprisonment with a non-parole period of three years and four months.
Whether sentence manifestly inadequate - approach of appellate court on prosecution appeals - consideration of sentencing guideline for cases of persistent sexual exploitation of children under 12 years of age.
Held: Appeal allowed - defendant resentenced to ten years' imprisonment with a non-parole period of five years.
Criminal Law Consolidation Act 1939 (SA) s 352(1)(a)(iii), s 50, s 353, s 340.; Criminal Law (Sentencing) Act 1988 (SA) s 29D, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Harkin (2011) 109 SASR 334, applied.
R v D (1997) 69 SASR 413; R v Mangelsdorf (1995) 66 SASR 60; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Malvaso v The Queen (1989) 168 CLR 227; R v Drewett (1983) 35 SASR 344; R v Elliott (2001) 21 A Crim R 254; Lacey v Attorney-General (Qld) [2011] HCA 10; Police v Cadd (1997) 69 SASR 150; R v King (1988) 48 SASR 555; R v Place (2002) 81 SASR 395; R v Payne (2004) 89 SASR 49; R v Knott (2007) 169 A Crim R 291; Dinsdale v The Queen (2000) 202 CLR 321, considered.

R v MARIEN
[2011] SASCFC 116
Court of Criminal Appeal: Gray, Sulan and Blue JJ
THE COURT:

This is an application by the Director of Public Prosecutions for permission to appeal against a sentence imposed in the District Court on 17 August 2011.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 352(1)(a)(iii).
The defendant and respondent, Anthony Michael Marien, pleaded guilty on the morning of trial to the offence of persistent sexual exploitation of a child.[2] The maximum penalty for the offence is life imprisonment. The Judge sentenced the defendant to a term of five years’ imprisonment with a non-parole period of three years and four months’ imprisonment.
[2] Criminal Law Consolidation Act 1935 (SA) s 50.
The Director applies for permission to appeal on the basis that the sentence is manifestly inadequate and that it fails to maintain appropriate standards of punishment in relation to this offence. The defendant opposes the application and submits that although the sentence may be moderate, it is not a rare and exceptional case requiring intervention by this Court.
Background
The victim of the offending is the daughter of the defendant’s former partner. The defendant was sentenced on the basis that the offending occurred between September 2008 and September 2009, during which time the complainant was 9 and 10 years of age. The offending involved repeated sexual interference, usually when the complainant was absent from school due to illness. She suffered from chronic colds and ear infections; her school records show an absence from school on 40 occasions over the relevant period.
The offending involved touching of the vagina and digital penetration of the vagina. Specific acts included two occasions when the defendant performed cunnilingus, masturbation and ejaculation in the presence of the victim, rubbing of his penis on her vagina and the placement of a vibrator on her vagina.
The Judge had regard to the personal antecedents of the defendant. The Judge accepted that the defendant had been a good father to his three children from a former relationship and noted that he had no prior convictions. The Judge noted that during the period of offending the defendant was abusing both alcohol and marijuana which is likely to have impacted on his judgment and behaviour.
Reference was made to the decision of R v D,[3] to which the Judge had regard. The Judge considered a starting point of five years and six months’ imprisonment to be appropriate, reduced to five years taking into account the defendant’s plea of guilty. A non-parole period of three years and four months was fixed.
[3] R v D (1997) 69 SASR 413.
The appeal
The Director submits that the sentence imposed is manifestly inadequate. It is contended that it fails to maintain adequate standards of punishment for the offence, and fails to reflect the seriousness of the offending conduct and the need for general deterrence.
More particularly, the Director submits that R v D[4] provides a starting point of 12 years’ imprisonment for cases involving persistent sexual activity over a period of time, by a person in a position of authority against a child under the age of 12.
[4] R v D (1997) 69 SASR 413.
Counsel for the defendant submits that, although low, the sentence is not so low so as to warrant intervention by this Court upon a prosecution appeal.
The approach of the appellate court
It is well established that the Court should grant leave to the Director to appeal against sentence only in a rare and exceptional case.[5] In Everett,[6] the High Court explained that the underlying rationale is the principle of double jeopardy:
[5]    Everett v The Queen (1994) 181 CLR 295 at 299.
[6]    Everett v The Queen (1994) 181 CLR 295 at 299-300.
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified.” In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick C.J. in Griffiths v The Queen:
“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
The reference to “matters of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick C.J. saw as constituting “error in point of principle”.
(Citations omitted).
In Osenkowski, King CJ observed:[7]
The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
In Nemer,[8] Doyle CJ said that it has been established by the High Court that in order to obtain leave to appeal against sentence, the Director must do more than establish that an error has occurred:[9]
The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case.
(Citations omitted)
[7]    The Queen v Osenkowski (1982) 30 SASR 212 at 213.
[8]    R v Nemer (2003) 87 SASR 168.
[9]    R v Nemer (2003) 87 SASR 168 at [24].
An error must be identified before a sentence may be interfered with.[10] This may be inferred from a sentence that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed merely because an appellate court would itself have reached a different result.[11] As Kirby J explained in Dinsdale:[12]
… As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
[10] R v Knott (2007) 169 A Crim R 291.
[11] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
[12] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
Statutory provisions
Sections 353 and 340 of the Criminal Law Consolidation Act 1935 (SA) are relevant to the Court’s power in respect of an appeal against sentence.
Section 353 provides:
…
(4) Subject to subsection (5), on an appeal against sentence, the Full Court must –
(a) if it thinks that a different sentence should have been passed –
(i) quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case – dismiss the appeal.
(5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
Section 340 of the Act provides:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must –
(a) impose the sentence that should have been imposed in the first instance; and
(b) order that the sentence –
(i)will be taken to have come into effect on a date before the date of the order; or
(ii)will take effect on a date on or after the date of the order.
Double jeopardy has been considered historically by appellate courts when assessing whether permission to appeal should be granted,[13] whether an appeal should be allowed,[14] and where resentencing an offender whose sentence imposed at first instance has been quashed.[15]
[13] R v Nemer (2003) 87 SASR 168 at [26]; Everett v The Queen (1994) 181 CLR 295 at 299; Malvaso v The Queen (1989) 168 CLR 227 at 234.
[14] R v Drewett (1983) 35 SASR 344 at 346.
[15] R v Mangelsdorf (1995) 66 SASR 60 at 71; Dinsdale v The Queen (2000) 202 CLR 321 at [62]; R v Elliott (2001) 121 A Crim R 254 at [96].
The historical context of Crown appeals and the principles of double jeopardy were recently explored by the High Court in Lacey.[16] The High Court noted that the treatment of Crown appeals as “exceptional” indicated a judicial concern that criminal statutes should not be construed so as to facilitate the erosion of common law protection against double jeopardy. It considered that this was reflective of a wider resistance to the construction of statutes, absent clear language, so as to infringe upon fundamental common law principles, rights and freedoms.[17]
[16] Lacey v Attorney-General (Qld) [2011] HCA 10 at [17].
[17] Lacey v Attorney-General (Qld) [2011] HCA 10 at [17].
The operation of sections 340 and 353(4)(a)(i) was considered by the Full Court in Harkin.[18] The Court considered that if sections 340 and 353(4)(a)(i) are read together, section 340 works to remove the Court’s ability once it has decided to resentence to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence. Gray and Sulan JJ remarked:[19]
…[T]he words of the section make it clear that section 340 only imposes a duty on the Court at the point after the question of the grant of permission to appeal and the question of whether the appeal should be allowed, have been decided.
Section 340 precludes the Court from having regard to the “rule of law”, known as double jeopardy when resentencing. The words “Despite any other rule of law” should be presumed to have some work to do and should be given some meaning and effect. In our view, the effect of section 340 is to remove from consideration any rule of law enabling a Court to impose, when resentencing, a sentence other than the sentence which the Court thinks ought to have been imposed at first instance.
(Citations omitted)
Section 340, therefore, does not dilute the appellate court’s ability to consider double jeopardy in determining whether to grant permission to appeal.
[18] R v Harkin (2011) 109 SASR 334.
[19] R v Harkin (2011) 109 SASR 334 at [35]-[36], see also White J at [105]-[106].
Sentencing standards
Previous decisions on a sentence to be imposed will, impliedly, indicate the level of sentence to be imposed for a certain offence in particular circumstances. Further to this the Court will, on occasion, give more general guidance as to the principles to be applied to the punishment of crimes of a particular type, and as to the general standard of sentencing to be applied.
In Cadd,[20] Doyle CJ observed:[21]
It is the function of this Court to ensure that the sentencing process in individual cases is not affected by error of principle. It is also the function of this Court to ensure that sentences are neither excessive nor inadequate. The latter function is performed in two ways. First, in individual cases, by correcting a particular sentence that is considered to be excessive or inadequate. Secondly, by establishing standards of sentencing for particular offences, when the court thinks it appropriate to do so. That may be done over time through the process of correcting individual sentences. But it may also, in my opinion, be done by the court indicating an appropriate sentencing range for a particular offence or offences of a particular type.
In King,[22] Cox J noted:
In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed – “about” and “of the order of” and “suggest” and so on – are not merely conventional. The same notion must qualify, in my opinion, any inclination to apply the policy of a s 302 in a purely mechanical way. It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two “standard” cases, are the same.
[20] Police v Cadd (1997) 69 SASR 150.
[21] Police v Cadd (1997) 69 SASR 150 at 165.
[22] R v King (1988) 48 SASR 555 at 557-558.
In Place,[23] Doyle CJ, Prior, Lander and Martin JJ, with whom Gray J agreed, reviewed many of the authorities in which the Court had considered the issue of identifying a standard for a particular offence. The Court reaffirmed the comments of Doyle CJ in Cadd and Cox J in King:[24]
In our opinion, the approach taken by this Court to the setting of standards of penalty is sound in principle and forms an important part of the proper role of the Court of Criminal Appeal. We respectfully agree with the observations of Gleeson CJ in Wong in the passage earlier cited. Where this Court has set standards of penalty, it has expressly identified the standards as applying to the ordinary cases and explained the reasons for setting the standards. In each instance, the nature of the “ordinary case” has been identified and guidance given concerning the factors of particular relevance in the exercise of the sentencing discretion for particular offences. This court has repeatedly made it plain that all relevant factors must be considered and that the guidance given by way of identifying a standard is not to be taken as detracting from the duty of the sentencer to assess the individual circumstances of each case and to impose a sentence appropriate to those individual circumstances. In each instance, when disposing of appeals that involve identifying a standard, this Court has had regard to all relevant factors and did not adopt a mechanical approach or an approach inappropriately fettered by the standard.
[23] R v Place (2002) 81 SASR 395.
[24] R v Place (2002) 81 SASR 395 at [31].
In Payne,[25] the Court (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ) reaffirmed the approach outlined in Place. The Court summarised the position as follows:[26]
We have summarised the court’s approach and practice, to emphasise that the practice of this Court giving guidance to sentencing courts is well established and is regulated by principles that govern the exercise of the court’s jurisdiction. Those principles dictate that the guidance given is in terms of sentencing principles to be applied, and the sentencing range that can be expected for certain types of case. The guidance does not take, and as a matter of law cannot take, the form of a determination of the actual sentence to be imposed in future cases. That would amount to an attempt to exercise the power, that rests with the sentencing court, to determine the sentence appropriate to the case, in light of relevant statutory provisions and of the principles and standards identified by this Court.
[25] R v Payne (2004) 89 SASR 49.
[26] R v Payne (2004) 89 SASR 49 at [15].
In R v D,[27] the appellant pleaded guilty to the offence of persistent sexual abuse against his 13-year-old stepdaughter. The abuse took place over a period of two months on an almost daily basis. It ranged from indecent assault, cunnilingus and fellatio, to the digital penetration of the victim’s vagina. The appellant was sentenced to six years’ imprisonment with a non-parole period of four years and six months. On appeal this was reduced to five years’ imprisonment with a non-parole period of three years and six months. Doyle CJ noted that there was much to be said in the appellant’s favour – he pleaded guilty at the first opportunity, he had voluntarily ceased abusing the victim, the abuse occurred over a relatively short period of time, he participated in family counselling knowing that his offending was likely to be revealed, and he was genuinely remorseful and of good character. The Chief Justice commented on the nature of these types of offences generally:[28]
It is not necessary to repeat what the court has said so often in the past about such offences. I merely add this. They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.
He later said:[29]
In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.
...
I consider that the court should take this course because of the seriousness of the crime in question, and because of its prevalence. I realise that there is not likely to be a significant reduction in the frequency of offending unless other strategies, outside the field of the courts, are pursued. But I consider that the courts should respond to the existing situation in the manner suggested by me.
(Emphasis added)
[27] R v D (1997) 69 SASR 413.
[28] R v D (1997) 69 SASR 413 at 423.
[29] R v D (1997) 69 SASR 413 at 424.

The Director submits that R v D[30] provides a guideline to courts when sentencing in cases involving persistent exploitation of a child under the age of 12, by a person in a position of authority. That is, a suggested starting point of 12 years.
[30] R v D (1997) 69 SASR 413.
Since R v D,[31] Parliament has enacted section 29D of the Criminal Law (Sentencing) Act 1988 (SA), which provides:
[31] R v D (1997) 69 SASR 413.
29D – Sentencing standards for offences involving paedophilia
(1) The Parliament declares that-
(a) the 1997 amendment of sentencing standards reflected an emerging recognition by the judiciary and the community generally of the inherent seriousness of offences involving paedophilia; and
(b) the reformed standards should be applied to offences involving paedophilia committed before or after the enunciation of the 1997 amendment of sentencing standards (or committed in part before, and in part after, the enunciation of the 1997 amendment of sentencing standards).
(2) In this section-
1997 amendment of sentencing standards means the change to sentencing standards enunciated in R v D (1997) 69 SASR 413;
offences involving paedophilia means all offences to which the 1997 amendment of sentencing standards is applicable (whether individual sentences for the offences have been, or are to be, imposed or a global sentence covering a series of offences or a course of conduct involving a number of criminal incidents).
reformed standards means sentencing standards as changed by the 1997 amendment of sentencing standards.
The reference to sentencing standards in section 29D is to be interpreted having regard to the decisions of this Court in Cadd, King, Place and Payne. Section 29D does not fetter the Court’s discretion to determine the sentence appropriate to each individual case, having regard to all the circumstances of the offending and matters personal to a defendant. The effect of section 29D does no more than require the Court to have regard to the decision in R v D.[32] Section 29D(1)(b) gives retrospective effect to the decision in R v D.[33]
[32] R v D (1997) 69 SASR 413.
[33] R v D (1997) 69 SASR 413.
R v D[34] provides a notional starting point of approximately 12 years, subject to various factors personal to the defendant. Doyle CJ was concerned with the need for the range of penalties for this particular offence to be lifted in those cases concerning unlawful sexual intercourse of children below 12 years of age, where there have been multiple offences over a period of time. Nevertheless, a sentence in the general vicinity of 12 years with a higher or lower starting point may be appropriate, depending upon the facts and circumstances of each case.
[34] R v D (1997) 69 SASR 413.
The sentence
The remarks of the Judge are brief. Although the Judge notes that he has taken into account the principles of R v D,[35] he does not explain why, in this case, he has departed so significantly from that decision. The offending was of a serious nature, involving multiple acts over a prolonged period of time. It was a gross breach of a position of trust between the defendant and a vulnerable child under the age of 12 years, who was taken advantage of during periods of illness. Having regard to the victim impact statements from the child and her mother, it is evident that the offending has had a damaging impact on both the child’s schooling and social life, and is likely to do so for some time to come.
[35] R v D (1997) 69 SASR 413.
Considering the serious nature of the offending, the position of authority of the defendant, his lack of insight as to the seriousness of his conduct and the adverse consequences to the child, it is in our view necessary that this Court intervene in order to uphold and maintain an adequate standard of sentencing for this type of offence. The sentence imposed is so outside what would be expected to be within the acceptable range for this type of offending that permission to appeal should be granted and the respondent resentenced.
Resentencing
During the period of the offending, the defendant was aged in his early thirties. He was assessed by a psychologist, who is of the opinion that the defendant is an emotionally unstable person and displays traits of anxiety, depression and self-consciousness. He is of average intelligence. He has a history of relationships, one of which resulted in the birth of three children who were aged 13, 12 and 10 respectively. He had custody of the children, as his former partner had moved to Queensland. He had a good relationship with the children and they were in a stable situation. The defendant’s imprisonment has had a disruptive effect upon them.
The factors personal to the defendant, to which we have had regard include: his unstable and unhappy upbringing; his psychological profile; and his personal situation in respect of his three children. At the time of the offending, the defendant was abusing both alcohol and marijuana. The psychologist considers that he has psychological problems, including relationship problems. The psychologist recommended that he be referred to a formal sex offender rehabilitation program within the correctional system.
The offending, however, is of the most serious kind. It persisted over a lengthy period of time during which he took advantage of a defenceless child who was in his care. He abused the trust placed in him by his then partner.
Taking all factors into account, we consider that a starting point of 12 years’ imprisonment is appropriate. Having regard to the defendant’s plea of guilty, albeit late, and his contrition and remorse, we would reduce the sentence to ten years’ imprisonment. Taking into consideration the defendant’s personal circumstances and, in particular, his family situation, we would impose a non-parole period of five years’ imprisonment.
Order:
1.That permission to appeal be granted and the appeal allowed.
2.That the sentence imposed by the sentencing Judge is set aside and, in substitution, a sentence of ten years’ imprisonment, with a non-parole period of five years’ imprisonment is imposed. The sentence and non-parole period are to commence on 17 August 2011 when the defendant was taken into custody.