R v Marikar

[2010] SASCFC 36

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MARIKAR

[2010] SASCFC 36

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)

24 September 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

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

Criminal law - prosecution application for leave to appeal against sentence - respondent found guilty of three counts of aggravated indecent assault - respondent was the victim’s diving coach and offences were committed in the course of training sessions - where victim 13 years of age and respondent 44 years of age - where respondent previously of good character - where sentence of imprisonment would impose hardship on the respondent’s family - respondent sentenced to imprisonment for five years with a non-parole period of two years, suspended on entering into a bond - whether sentence manifestly inadequate - whether trial judge erred in finding good reason to suspend the sentence - whether rare and exceptional circumstances exist to justify interference with sentence.

Held: (Gray J, Kelly J concurring) Permission to appeal granted, appeal dismissed - no error demonstrated on the part of the sentencing judge - sentence was within discretion - sentence should only be interfered with on a Crown appeal in rare and exceptional circumstances.

(Duggan J, dissenting) Permission to appeal should be granted and the appeal allowed - no error demonstrated with regard to the head sentence and non-parole period - previous good character, losses suffered as a result of offending and impact on family insufficient to constitute good reason for suspending sentence - suspension rendered sentence manifestly inadequate - order suspending sentence should be set aside.

Criminal Law (Sentencing) Act 1988 (SA) s 10(1), s 10(4), s 29D and s 38(1), referred to.
R v Buckskin [2010] SASC 138; The Queen v Wirth (1976) 14 SASR 291; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; R v Hicks (1987) 45 SASR 270; Dinsdale v The Queen (2000) 202 CLR 321; R v Adami (1989) 51 SASR 229; Neill v Police [1999] SASC 270; R v Edwards (1996) 90 A Crim R 510; R v Hayes (1987) 29 A Crim R 452; R v D (1997) 69 SASR 413; Markarian v The Queen (2005) 228 CLR 357, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"rare and exceptional circumstances", "good reason to suspend"

R v MARIKAR
[2010] SASCFC 36

Court of Criminal Appeal:   Duggan, Gray and Kelly JJ

1. DUGGAN J:         This is an application by the prosecution for permission to appeal against the sentence imposed on the respondent who was found guilty of three offences of aggravated indecent assault.  The victim was 13 years of age and the respondent 44 at the time the offences were committed.  The respondent was the victim’s diving coach and the offences were committed in the course of training sessions.

2. The respondent was sentenced to imprisonment for five years and a non‑parole period of two years was imposed.  The sentence was suspended upon the respondent entering into a bond.  The Director of Public Prosecutions (“the DPP”) argues that the non‑parole period is inadequate and that the sentence should not have been suspended.

3. The respondent elected to be tried by Judge alone.  The Judge found the offences took place while the respondent was massaging the victim in the course of training sessions.  The Judge summarised his conclusions in his reasons for decision:[1]

   I am satisfied beyond reasonable doubt that on 31 December 2008, the accused indecently assaulted the complainant by touching her on the vagina as she says. That is Count 1. I am satisfied that he had touched her on the vagina before that during massages.  I am unable to find how many times he did that but I find that the first occasion was sometime in mid-November 2008.  I am also satisfied that on 31 December the accused touched the complainant on the breasts.  That is an uncharged act.  I find that was the first time that the accused had done that.

   I am satisfied beyond reasonable doubt that on 1 January 2009 the accused touched the complainant on the breasts.  That is Count 2.  I am also satisfied beyond reasonable doubt that he touched her on the vagina.  I think he probably partially penetrated her vagina with his finger.  I think it is more likely than not that on New Year's Day his touching of her vagina was different from his touching on the earlier occasions.  I think it is likely that he did penetrate her vagina beyond the labia majora.  However I think that it is possible that the complainant was not 100% sure exactly where the accused placed his finger and that slight uncertainty gave rise to the different ways she related that incident.  In those circumstances I am not satisfied beyond reasonable doubt that the accused did actually penetrate the complainant’s vagina.  I find that the accused touched her on the vagina rather than touched her inside it.  I am satisfied beyond reasonable doubt that on 1 January 2009 the accused touched the complainant twice on the breasts.  The second touching was an uncharged act.

   [1]    R v Marikar [2010] SADC 57 at [101]-[102].

4. When sentencing the respondent the Judge said:

   Each of the offences of aggravated indecent assault carries a maximum penalty of ten years imprisonment. Each has to be seen against the background of a short course of similar conduct. You were the complainant’s coach and you breached the trust of her and her family when she was only 13.

   You have expressed no remorse. A primary policy of the criminal law is to protect children from sexual offenders by ensuring that paramount consideration is given to the need for deterrence. As I have said, I do not think that you are likely to re-offend but general deterrence is important. That is particularly so in the case of persons in positions of authority and trust, as you were.

   I turn to sentence. I will impose one prison sentence for all three counts but I take all three into account.

   I impose a head sentence of five years imprisonment. I fix a non-parole period of two years.

   There is then the difficult question of whether I may suspend the sentence. I may do so if good reason exists.

   When considering whether good reason exists it is necessary to balance competing considerations. This is serious offending against a child. There is a breach of trust. The offence is part of a course of conduct, albeit short. You have not shown remorse. On the other hand you have been a good character for a long time. There are many aspects to your good character to which I have referred.

   This was very uncharacteristic offending. You have already lost your job and very likely your career. You have had to sell your house. Your family will suffer if you are imprisoned. That is an inevitable consequence of serious offending, but it is not to be overlooked.

   I do not find the balance easy to gauge, but I have concluded that the combination of mitigating factors outweighs the factors tending in the other direction.

   I will suspend the sentence of imprisonment if you will enter a bond in the sum of $500 to be of good behaviour for three years.

5. The respondent is married with three young children.  He has no previous convictions and evidence of his previous good character was tendered during sentencing submissions.  On the other hand, the seriousness of the offending is readily apparent.  The offences were committed against a young girl, who has suffered considerably as a result.  The victim impact statements prepared by the victim and her mother provide insight into the adverse effects which the offending has had on the victim and her family.

6. Furthermore, the offending was an abuse of the position of trust which the respondent held as the victim’s coach.  She was ambitious to succeed in her sport and was reliant on the respondent to achieve her goals.  It is obvious that the respondent took advantage of her dependence on him and his influence over her by sexually abusing her during training sessions.  He has not demonstrated any remorse for his conduct.

7. The head sentence of imprisonment for five years adequately reflects the seriousness of the respondent’s conduct and the duty of the Court, pursuant to s 10(1)(ec) and s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), to give effect to the primary policy of protecting children from sexual predators by giving paramount consideration to the need for deterrence.

8. The non-parole period of two years was imposed against the background of the respondent’s personal circumstances including his previous good character.  In my view the fixing of the non-parole at this level was within the Judge’s discretion and I would not interfere with this component of the sentence.

9. Section 38(1) of the Sentencing Act enables the Court to suspend a sentence of imprisonment if “good reason exists for doing so”. In Dinsdale v The Queen,[2] Kirby J held that when determining whether a sentence will be suspended it is necessary to revisit the same considerations which are relevant to the task of deciding whether a sentence of imprisonment was appropriate in the first place.  These included the circumstances of the offence and the personal circumstances of the offender.

   [2] (2000) 202 CLR 321 at [85].

10. It remains the case, however, that the sentence cannot be suspended unless the Court is of the view that there is good reason not to require the sentence to be served forthwith.

11. In his sentencing remarks the Judge said that he concluded “that the combination of mitigating factors outweighs the factors tending in the other direction”.  It is apparent from his remarks on sentence that he suspended the sentence because of the respondent’s good character, the losses which he has suffered as a result of the offences and the detriment to his family if he is required to serve a period of imprisonment.

12. In my view the respondent’s previous good character would not be sufficient in itself to justify suspension in the circumstances of this case.  The offences were serious and the respondent was entrusted with the care of the victim because of his standing and role in the community.  As observed above, he exhibited no remorse for his conduct.

13. The loss of the respondent’s employment as a diving coach does not advance the case for suspension of the sentence.  The respondent was able to commit the offences by using the influence he had over the victim by reason of his employment.  Loss of his employment was inevitable.

14. The only other factor which influenced the Judge was the detriment which would be suffered by the respondent’s family if he were required to serve a sentence of imprisonment.  This would be a heavy burden on his family, but it is a frequent consequence of criminal behaviour.  It is only in exceptional cases that this consideration can affect the penalty to be imposed.[3]

    [3]    R v Adami (1989) 51 SASR 229; Neill v Police [1999] SASC 270 per Doyle CJ at [24].

15. In R v Buckskin[4] Nyland and Gray JJ reviewed a number of authorities before concluding that, although a court may have regard to the effect of a sentence on the dependants of a defendant, hardship to a third party is an inevitable consequence of most sentences of imprisonment.  Their Honours said:[5]

    It is well established that a Court may have regard to the probable effect of a sentence on the dependants of a defendant.[6]  However, it is also well accepted that hardship to a third party is an inevitable consequence that follows the imposition of most sentences of imprisonment.[7]  As a consequence, the consideration of the effect of a custodial sentence on dependants will only have a significant impact on penalty if the effect it has in the case under consideration is out of the ordinary or “exceptional”.[8]

    [4] [2010] SASC 138.

    [5] [2010] SASC 138 at [39].

    [6]    Criminal Law (Sentencing) Act 1988 (SA) section 10(1)(n). That section has been interpreted as not altering the common law principles: R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60 at 70.

    [7]    See the remarks of Doyle CJ in R v Carpentieri (2001) 81 SASR 164 at 168 citing with approval R v Wirth (1976) 14 SASR 291 at 295-296.

    [8]    R v Wirth (1976) 14 SASR 291 at 295-296; Bates v Police (1997) 70 SASR 66 at 69.

16. In R v Edwards[9] one of the issues was whether it was appropriate for the sentencing Judge to direct that the sentence imposed be served by way of periodic detention, Gleeson CJ (James and Ireland JJ concurring) applied the decision of Wells J in The Queen v Wirth[10] where His Honour said:[11]

    … in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so.

    In Edwards it was held that the circumstances fell short of establishing that the case was highly exceptional in this respect.

    [9] (1996) 90 A Crim R 510.

    [10] (1976) 14 SASR 291.

    [11] (1976) 14 SASR 291 at 296.

17. There was no material placed before the Judge in the present case which established that the dependants of the respondent would suffer exceptional hardship by reason of his imprisonment.

18. It follows, in my view, that the only consideration which went towards providing good reason for the suspension of the sentence was the respondent’s previous good character.  I have already expressed the view that in the light of the seriousness of the offences, this could not constitute good reason, of itself, to suspend the sentence.

19. I have had regard to the strictures placed upon prosecution appeals against sentence.  However, it is my view that the decision to suspend the sentence when there was no good reason to justify that course resulted in a manifestly inadequate penalty.

20. I would grant permission to the DPP to appeal against the sentence.

21. I would allow the appeal and set aside the order suspending the sentence.

    GRAY J.

22. This is an application by the Director of Public Prosecutions for permission for leave to appeal against sentence.

    Introduction

23. The defendant and respondent, Fiasz Marikar, was convicted of three counts of aggravated indecent assault[12] following a trial by a Judge sitting alone in the District Court.  The defendant was sentenced to a term of imprisonment of five years.  A non-parole period of two years was fixed.  The Judge suspended the sentence on the defendant entering into a three year good behaviour bond. 

    [12]   Contrary to Criminal Law Consolidation Act 1935 (SA) section 56.

24. The three offences were committed by the defendant on New Year’s Eve 2008 and New Year’s Day 2009 against a 13 year old complainant.  The circumstance of aggravation relating to each offence was that the complainant was under the age of 14 years at the time of the offending.  The Judge also found proved other uncharged acts of indecent assault.  The offending, including the uncharged acts, occurred over a six week period.

25. The defendant was employed as a diving instructor and the complainant had been a trainee under his instruction for some time. 

26. The offending the subject of the first count occurred at a training facility at Royal Park on New Year’s Eve 2008.  The defendant touched the complainant on her vagina as he was massaging her.  On the following day, New Year’s Day, during a training session at the North Adelaide Aquatic Centre, the defendant touched the complainant on her breasts and also touched her on the vagina.  The Judge found that similar acts had been committed during massaging routines over a period of about six weeks leading up to New Year’s Eve 2008.  The offending came to an end following the complainant speaking to her mother. 

27. When sentencing, the Judge observed that the defendant’s actions were in breach of trust and that the incidents were not isolated.  He also noted that the defendant had no entitlement to any credit for pleading guilty or showing any remorse.  The Judge in the course of his sentencing remarks spoke of the effect on the complainant in the following terms:

    The victim impact statements of the complainant and her mother demonstrate the extent to which each has been affected.  The complainant’s diving career has been put at an end because she was unable to obtain alternative instruction.  She and her family have become more wary in the presence of others as a result of what you did.

    There have been other effects as well.  Some are short-term but others are long-term.  Their statements highlight the breach of trust and they highlight how profoundly this sort of offending can affect, particularly, young people.

    While the offending is aggravated by being committed while occupying a position of trust, it is true that the offending is not at the higher end of seriousness.  Unfortunately, the courts see offending that is more serious in its nature and more serious in its extent.

28. The Judge addressed the defendant’s antecedents and in particular remarked:

    You are 45. You are married with three young children. You have no previous convictions or court appearances. Before this offending you were a person of good character.

    I have carefully read the 12 references together with the letter from your wife. The referees come from very diverse sources. I will not identify each, but they include a diving administrator, a kindergarten parent, one of your son’s teachers, former colleagues at the Aquatic Centre, your present employer and a fellow employee, a former diving trainee, a neighbour and friends.

    There is a good deal of repetition in the references but that only tends to reinforce the accuracy of what is being said. In one way or another all referees refer to your offending as completely out of character.  Some express surprise and shock that it could have occurred. You are described as a devoted family man and a hard worker. You have done soccer coaching for your son’s school. You have organised events at your previous workplace. You are described by the referees as an able coach.

    Witnesses who gave character evidence during your trial said the same. You were regarded as a considerate colleague. You are religiously observant. You are described as gentle and dignified. I accept all of these descriptions. The referees are thoughtful and moderate in their remarks. Their experience of you is quite different from that of the complainant. They have seen the many positive aspects of your personality. This offending can be seen as truly uncharacteristic.

    The complainant was the victim of your uncharacteristic behaviour.

    Your wife speaks of the effort it has taken to build your career, involving as it does migration first from Sri Lanka to New Zealand and then migration to Australia. You are now an Australian citizen. You help support family in Sri Lanka. While some of the consequences for you of your offending might be seen as inevitable, they can also be seen as penalties you have already suffered.

    Unsurprisingly, you had to resign your position as a coach at the Aquatic Centre. In all probability that has meant not only that you lost your job, but you have lost the successful career you built up.

    A consequence of that is that you have had to sell the house that you and your family lived in.

    You are now living in rented accommodation. You have managed to find a job as a technician in a hospital. Finding that job was difficult, but you have applied yourself to it, as your present employer and a work colleague say in their references. I have regard to those matters.

    I have also regard to a letter which I have been handed this morning. It is a letter from you in which you speak of other effects on you of the publicity given to your offending.

    I think that these consequences would be sufficient to deter you from re-offending.

1. The Judge turned to the question of the sentence to be imposed and observed:

   Each of the offences of aggravated indecent assault carries a maximum penalty of ten years imprisonment. Each has to be seen against the background of a short course of similar conduct. You were the complainant’s coach and you breached the trust of her and her family when she was only 13.

   You have expressed no remorse. A primary policy of the criminal law is to protect children from sexual offenders by ensuring that paramount consideration is given to the need for deterrence. As I have said, I do not think that you are likely to re-offend but general deterrence is important. That is particularly so in the case of persons in positions of authority and trust, as you were.

   I turn to sentence. I will impose one prison sentence for all three counts but I take all three into account.

   I impose a head sentence of five years imprisonment. I fix a non-parole period of two years.

2. The Judge then addressed what he described as a difficult question, namely the question of whether the sentence should be suspended.  He reached the conclusion that good reason did exist to suspend the sentence.  In reaching that conclusion he reasoned:

   When considering whether good reason exists it is necessary to balance competing considerations. This is serious offending against a child. There is a breach of trust. The offence is part of a course of conduct, albeit short. You have not shown remorse. On the other hand you have been a good character for a long time. There are many aspects to your good character to which I have referred.

   This was very uncharacteristic offending. You have already lost your job and very likely your career. You have had to sell your house. Your family will suffer if you are imprisoned. That is an inevitable consequence of serious offending, but it is not to be overlooked.

   I do not find the balance easy to gauge, but I have concluded that the combination of mitigating factors outweighs the factors tending in the other direction.

   Director’s Application

3. The principles relevant to Crown appeals against sentence are well established.  In Nemer,[13] Doyle CJ summarised those principles as follows:[14]

   The Director's right to seek leave to appeal against sentence, and the court's power to interfere, are found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). Similar provisions exist in other States.

   The High Court has determined that the court should grant leave to the Director to appeal against sentence "only in the rare and exceptional case": Everett v The Queen (1994) 181 CLR 295.

   The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would "shock the public conscience": see R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.

   [13] R v Nemer (2003) 87 SASR 168.

   [14] R v Nemer (2003) 87 SASR 168 at [22]-[24].

4. In Osenkowski,[15] King CJ observed that the proper role for prosecution appeals is to enable courts to establish and maintain adequate standards of punishment for crime,[16] to correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crime[17] and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[18] 

   [15] R v Osenkowski (1982) 30 SASR 212.

   [16] R v Osenkowski (1982) 30 SASR 212 at 212-13.

   [17] R v Osenkowski (1982) 30 SASR 212 at 212-13.

   [18] R v Osenkowski (1982) 30 SASR 212 at 212-13.

5. The basis for the “rare and exceptional” test for Crown appeals lies with the principle of double jeopardy, as explained by the majority of the High Court in Everett. [19]  Their Honours observed:[20]

   … 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 …

   [footnote omitted]

   [19]   Everett v The Queen (1994) 181 CLR 295.

   [20]   Everett v The Queen (1994) 181 CLR 295 at 299.

6. Earlier, in Malvaso,[21] Deane and McHugh JJ noted that the Crown appeal against sentence:[22]

   … [R]epresents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy …

   [21]   Malvaso v The Queen (1989) 168 CLR 227.

   [22]   Malvaso v The Queen (1989) 168 CLR 227 at 234.

7. Furthermore, the discretion of the sentencing Judge in fixing a sentence is not to be interfered with lightly.  As King CJ noted in Osenkowski:[23]

   It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform …

   [23]   R v Osenkowski (1982) 30 SASR 212 at 212-213.

8. An appellate court may interfere to correct a sentence where it is so far below the appropriate range of sentence that it reflects an error of principle, or would “shock the public conscience” were it allowed to stand.[24]  However, in a case where an offender has been given a non-custodial or suspended sentence, the appellate court will be particularly reluctant to interfere and impose a sentence of immediate imprisonment.  In Hicks,[25] King CJ observed:[26]

   … When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating …

   [24]   R v Nemer (2003) 87 SASR 168 at 172 (Doyle CJ); R v Osenkowski (1982) 30 SASR 212 at 213.

   [25]   R v Hicks (1987) 45 SASR 270.

   [26]   R v Hicks (1987) 45 SASR 270 at 273. See also R v Hayes (1987) A 29 Crim R 452 at 469 (Kirby P).

9. Accordingly, a Crown appeal against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied.  Furthermore, an error must be identified before a sentence may be interfered with.  As Kirby J explained in Dinsdale:[27]

   … 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.

   [footnote omitted]

   Such error may be inferred from a result that is manifestly unreasonable or plainly wrong.  However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[28] 

   [27] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.

   [28] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.

10. In the within appeal, the Director complained that the non-parole period of two years was manifestly inadequate, and further, that the decision to suspend the sentence of imprisonment was not an appropriate exercise of discretion.  The Director drew attention to what it contended were particularly serious aspects of the defendant’s offending.  It was pointed out that while the offences occurred over a two day period, they were preceded by other occasions when the defendant touched the complainant on the vagina during massages.  This had continued over a period of approximately six weeks and had commenced when the complainant was 12 years of age.

11. Particular emphasis was placed on the breach of trust.  It was pointed out that the defendant was purporting to carry out his responsibilities and duties as a diving instructor.  It was said that he not only abused his position of trust in relation to having the complainant in his care, but that he also utilised his relationship with the complainant as her instructor to gratify his own sexual interests.  It was said that the Judge failed to adequately consider the nature of the abuse of trust when determining his approach to sentencing. 

12. It was pointed out that the offences were not momentary lapses on the defendant’s part and that by his continuing conduct, he demonstrated a willingness to continue the offending.  The offending only ceased when the complainant notified her mother who then contacted the police.  In particular it was pointed out that there was no voluntary cessation of offending on the defendant’s part.  It was said that the defendant had groomed the complainant and that there was an escalation of the offending.  Finally it was pointed out that there was no contrition or remorse evident.

13. The Director drew attention to the terms of section 29D of the Criminal Law (Sentencing) Act 1988 (SA), which provides:

    (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 offences1 or a course of conduct involving a number of criminal incidents2).

    reformed standards means sentencing standards as changed by the 1997 amendment of sentencing standards.

    Notes—

    1 See section 18A of the Criminal Law (Sentencing) Act 1988.

    2 See section 74 of the Criminal Law Consolidation Act 1935.

14. The construction of this section is not without difficulty.  It is clear that Parliament intended to give legislative efficacy to the remarks of the Court of Criminal Appeal in R v D.[29] However, it is to be noted that Doyle CJ emphasised that he did not consider it appropriate to, nor was he attempting to, “establish exhaustive guidelines for the imposition of sentences under section 74”[30] of the Criminal Law Consolidation Act.

    [29]   R v D (1997) 69 SASR 413.

    [30]   R v D (1997) 69 SASR 413 at 421.

15. In summary, the Director contended that the defendant’s conduct and in particular the abuse of trust allowed the conclusion that the non-parole period of two years, being less than one half of the sentence, was inadequate and manifestly so.  Further, it was contended that the decision to suspend the sentence was manifestly inappropriate.

16. A review of the remarks of the sentencing Judge and in particular those portions extracted earlier in these reasons indicates that the sentencing Judge had regard to the relevant facts and circumstances.

17. In my view the fixing of a non-parole period of two years was well within the sentencing discretion of the Judge.  The defendant was a first offender with an otherwise excellent reputation.  He was married with three young children and his wife and family supported him.  The consequences of his offending had had a major impact on his employment and the well-being of his family.  In these circumstances the Judge was entitled to take the view that a shorter than usual non-parole period was appropriate in the circumstances. 

18. The Director’s complaint about the suspension of sentence raises difficult questions. On the one hand the defendant’s conduct was particularly grave. The defendant took advantage of a young child in his care and abused his office. These are very serious matters. It is also relevant that at the time he was a mature adult aged 44 years. It is further relevant that the conduct was brought to an end not by the defendant’s own conduct but by the complainant speaking to her mother and the police being notified. It is also relevant that Parliament has underscored the seriousness of this type of offending by the enactment of section 29D of the Sentencing Act, the terms of which I have earlier extracted.  On the other hand the defendant has otherwise led a blameless life, has a wife who supports him and has a young family.  There have been a number of consequences of his conduct that will act both as punishments and deterrents. 

19. The discretion to suspend a sentence of imprisonment remains as one of the matters to be considered by a sentencing Judge when dealing with the kind of offending committed by the defendant.  The question before this Court is not whether this Court would have suspended the sentence, but whether as a matter of sentencing discretion given the circumstances, it was open to the Judge to find that good reason existed to suspend.

20. Earlier in these reasons I referred to the observations of King CJ in Osenkowski.[31]  For almost 30 years these observations have been approved and applied by this Court without qualification.  The remarks have been adopted by interstate intermediate appellate courts.  The remarks have been approved by the High Court.[32]  This Court should continue to apply the principles articulated in Osenkowski with rigour.  Issues of double jeopardy arise.  Leave to appeal should only be granted to the Director against sentence in the rare and exceptional case.[33]

    [31]   R v Osenkowski (1982) 30 SASR 212.

    [32]   Dinsdale v The Queen (2000) 202 CLR 321 at [60] (Kirby J); Markarian v The Queen (2005) 228 CLR 357 at [116] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

    [33]   Everett v The Queen (1994) 181 CLR 295 at 299.

21. I have reached the conclusion that the Director should be granted permission to appeal.  I consider that the defendant was fortunate to have avoided an immediate custodial term.  However, I am not prepared to go so far as to say that the discretion could not have been exercised in the manner exercised.  I do not consider that any error has been demonstrated on the part of the sentencing Judge.  I do not consider that in all the circumstances the suspension of the sentence would shock the public conscience. 

    Conclusion

22. I would grant permission to appeal but dismiss the appeal.

23. KELLY J:             I would grant permission to appeal but I would dismiss the appeal.  I agree with the reasons of Gray J.  The respondent was fortunate to have been dealt with so leniently by the sentencing Judge, however as Gray J has pointed out, this is not one of those rare and exceptional cases where it is necessary to interfere with the sentence.