R v MAYNARD - [2014] SASCFC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAYNARD
[2014] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Bampton and The Honourable Justice Parker)
21 November 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appellant pleaded guilty to two counts of aggravated communicating with the intention of making a child amenable to sexual activity and one count of aggravated possessing child pornography – each offence was aggravated by reason of the appellant’s knowledge that the child was under the age of 14 years – the communicating offence was further aggravated by appellant’s abuse of a position of trust – appellant was an Aboriginal Education officer at a Department for Education and Child Development School – the child was a student of that school – appellant conceded before the sentencing Judge that s 10(3)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA) applied – appellant contends the concession was made in error and that the Judge was in error in determining that s 10(3)(ba) of the CLSA applied – whether appellant’s good character or lack of previous convictions was of assistance to him in the commission of the offence – whether sentencing Judge properly concluded that s 10(3)(ba) of the CLSA applied and he could not have regard to the appellant’s previous good character and lack of prior convictions in determining the sentence.
Held per Vanstone J: the concession primarily involved a question of fact, which was in the appellant’s sphere of knowledge – it is not for this Court to go behind the concession on the basis of the mere suggestion of different counsel.
Held per Bampton J, Vanstone and Parker JJ agreeing: section 10(3)(ba) applied to the appellant – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 63B(3), s 63A(1), s 5AA(1); Criminal Law (Sentencing) Act 1988 (SA) s 10(3), s 18A; Child Sex Offenders Registration Act 2006 (SA) Sch 1; Children's Protection Act 1993 (SA) s 8B, referred to.
R v Liddy (No 2) (2002) 84 SASR 231; MAK v Police [2008] SASC 342; R v Bonython-Wright (2013) 117 SASR 410; R v D (1997) 69 SASR 413, considered.

R v MAYNARD
[2014] SASCFC 128
Court of Criminal Appeal: Vanstone, Bampton and Parker JJ

VANSTONE J: I agree that the appeal should be dismissed and with the reasons of Bampton J.
I would only underline that, before the sentencing judge, the appellant clearly conceded that s 10(3)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) applied, and that, accordingly, the court was not to have regard to the appellant’s prior good character or lack of convictions.
The concession primarily involved a question of fact, which was within the appellant’s sphere of knowledge. It is not for this Court to go behind the concession on the basis of the mere suggestion of different counsel. In my opinion there is no reason to do other than assume that the concession was made for good reasons.
BAMPTON J: The appellant pleaded guilty at arraignment in the District Court to:
Count 1Aggravated communicating with the intention of making a child amenable to sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
Count 2Aggravated communicating with the intention of making a child amenable to sexual activity contrary to s 63B(3)(b) of the CLCA.
Count 3Aggravated possessing child pornography contrary to s 63A(1)(a) of the CLCA.
The circumstances of aggravation with respect to counts 1 and 2 were that:
-that the appellant knew the child he was communicating with was under the age of 14 years;[1] and
-that he abused a position of authority or a position of trust in committing the offence.[2]
[1] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(e)(i).
[2] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(i).
The circumstance of aggravation with respect to count 3 was that the appellant knew the child at the time of the offence was under the age of 14 years.[3]
[3] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(e)(i).
The maximum penalty for each count of aggravated communicating with the intention of making a child amenable to sexual activity is 12 years imprisonment.
The maximum penalty for the count of aggravated possessing child pornography is seven years imprisonment.
The appellant was aged 24 at the time of the offending. He had no criminal history and the Judge accepted he was a person of previous good character who had made a significant contribution to the community. The Judge determined that s 10(3)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) did not permit him to have regard to the appellant’s lack of prior convictions or his previous good character in determining sentence.
On 3 August 2014, s 10(3)(ba) of the CLSA came into operation. It provides that, in determining the sentence of an offence, a court must not have regard to the good character or lack of previous convictions of the defendant if:
(i)the offence is a class 1 or class 2 offence within the meaning of the Child Sex Offenders Registration Act 2006; and
(ii)the court is satisfied that the appellant’s alleged good character or lack of previous convictions was of assistance to the appellant in the commission of the offence.
Pursuant to Schedule 1 to the Child Sex Offenders Registration Act 2006 (SA), offences against s 63B(3)(b) and s 63A(1)(a) of the CLCA, namely communicating with the intention of making a child amenable to sexual activity and possessing child pornography, are class 2 offences.
The Judge utilised s 18A of the CLSA and imposed a sentence of two years imprisonment, reduced from two years and six months on account of the appellant’s guilty pleas. A non-parole period of nine months was fixed. The Judge declined to suspend the sentence.
The appellant appeals against the sentence on the ground that the Judge was in error in determining that s 10(3)(ba) applied to the appellant. The appellant submitted that the Judge’s determination may have been reinforced by a concession made by his counsel to the effect s 10(3)(ba) applied to him (the concession). The appellant contended the concession was made in error.
He argued that this is not a case in which it can be said that his good character and lack of previous convictions were of assistance to him in the commission of the offences.
He contended that the Judge should have taken into account his good character and suspended his sentence.
In the alternative, the appellant submitted that the factors favouring suspension were so compelling that, even if the Court could not have regard to his alleged good character or lack of previous convictions, the Judge was in error in not suspending the sentence.
Background
At the time of his offending, the appellant was employed at a Department for Education and Child Development (the Department) R-12 School as an Aboriginal Education Officer and Flexible Learning Outcomes Case Manager. His responsibilities at the school included liaising with Aboriginal students from reception to year 7 and their families to facilitate engagement with the education system.
He was also particularly involved in coaching, umpiring, organising and fundraising for netball and basketball.
His offending involved a female Aboriginal year 8 student at the school who was aged 13 years and 11 months at the time of the offending. In April 2013, the girl became infatuated with the appellant and sent him a friend request on Facebook. The appellant did not know the girl before she messaged him. The girl says that she met the appellant when she was in primary school when he played and umpired netball. She describes his role at the school as “a mentor with the Aboriginal kids at the [“A”] centre”. The “A” Centre is located on the school’s premises and is dedicated to Indigenous students, their families and visiting community members.
Following the receipt of the Facebook friend request, the appellant and the girl communicated by way of Facebook Messenger and mobile phone text messages. The communications became sexually explicit and included discussions about both the appellant and the girl masturbating and the appellant expressing a desire to have sexual intercourse with the girl. The girl sent to the appellant’s mobile phone images of her vagina, the appellant sent images of his penis following ejaculation.
Count 1 related to the appellant sending sexually explicit text messages to the girl between 1 May and 4 May 2013. Count 2 related to him sending text messages to the girl between 11 May and 14 May 2013. Count 3 related to the appellant receiving and storing on his mobile phone two images of the girl’s vagina.
The offending came to light when one of the girl’s school friends noticed a message attaching a photograph of the appellant’s penis on the girl’s phone. The matter was reported to a teacher and the police were contacted. The girl’s mobile phone was seized by police. The appellant was then arrested and his mobile phone was also seized.
The appellant admitted exchanging sexually explicit material with the girl but initially denied knowing she was under 14. He suggested that all communications were from her to him and that he succumbed to exchanging messages because she gave him the impression that if he did not respond she might feel rejected and harm herself. The appellant further suggested to police that he ignored her constant messages. These statements were untrue.
The transcript of the messages between the appellant and the girl disclose no reluctance or reticence on the part of the appellant in participating in the communications. The messages include a request by the appellant for images of the girl’s vagina and the appellant voluntarily providing images of his genitals.
The nature of the sexual activity the victim was made amenable to
During sentencing submissions, the appellant’s counsel submitted that the appellant did not communicate with the girl with the intention of physically engaging with her in sexual activity but rather with the intention of making her amenable to sexual activity that involved talking sexually and masturbating. There was no dispute that the appellant did not have sexual intercourse or any other form of physical contact with the girl. In many of the messages the appellant expressed interest in being the first person to have sex with the girl. He also spoke about meeting her so that he could engage in a variety of sexual acts including intercourse.
As the Judge expressed reservations about the factual basis of the pleas to counts 1 and 2, the appellant gave evidence. The appellant’s evidence was that he had never met or had contact with the girl outside of school hours. He emphasised that if he had wanted to have sex with the girl he could have easily arranged for such contact to occur.
Having heard the appellant’s evidence the Judge said that, despite lingering reservations, he would sentence the appellant on the basis that he intended to make the girl amenable to sexual activity which involved her “talking dirty” to him and participating in mutual acts of masturbation of which photographic images were exchanged. His Honour considered it was reasonably possible that the appellant did not intend to have sexual intercourse with the girl or physically touch her in any way.
The appellant’s personal circumstances
The appellant was 26 years of age at the time of sentencing. He had no prior convictions for any type of offence. His mother is Caucasian and his father is a Ngarrindjeri Aboriginal man. As a result of his father’s alcoholism, the appellant’s mother left his father when the appellant was a baby. The appellant grew up with his mother and stepfather in a happy stable home and he enjoys a close relationship with both of them. He met his biological father at the age of 13, but has had little to do with him since that time.
The appellant has learned the Ngarrindjeri language and prior to sentencing had visited his grandfather, a teacher at Raukkan, at least once a month and participated in traditional Aboriginal activities.
The appellant performed very well academically at school and excelled in sport, particularly in volleyball and netball. He played mixed and men’s netball at State level for four years and had been a State league netball umpire for South Australia for two years. He had also coached an under 16 mixed netball team for two years.
After completing year 12, he became a fulltime apprentice chef. During his apprenticeship he worked as a volunteer cultural mentor for Indigenous high school students and, at the age of 20, the role was offered to him on a fulltime basis. Upon being charged with this offending, the appellant’s employment as an Aboriginal Community Education Officer was terminated and he had to stand down from all his coaching and umpiring.
In sentencing, the Judge said that it was apparent from the numerous character references tendered that the appellant performed his job well and enjoyed a good reputation in the community. He had received an Australia Day award in 2011 when the City of Salisbury awarded him the Young Citizen of the Year Award. The Judge noted that as a young Aboriginal man he had become a leader in the community through his involvement with youth initiatives. The Judge accepted unhesitatingly that the appellant has been a person of good character and that he has made a significant contribution to the community.
Prior to being taken into custody, the appellant lived with his mother and stepfather. His mother left work in 2013 to become a fulltime carer for the appellant’s stepfather who is terminally ill. Following his termination from his employment with the Department, the appellant obtained work with Inghams as a Quality Control Officer to help supplement his family’s income. At the time of sentencing, that employment had been terminated due to Inghams losing a significant contract.
The Judge was provided with a report prepared by the psychologist, Mr Balfour. In his report, Mr Balfour records that the appellant acknowledged to him that his offending could have a substantially adverse impact on a child emotionally and psychologically. Mr Balfour expressed the opinion that the appellant presented a significant risk to adolescent females in the community, that he had paedophilic tendencies and displayed poor insight into the reasons for his offending. Mr Balfour considered that the risk the appellant presented could be reduced to a manageable and acceptable level through participation in a sexual behaviour program.
Application of s 10(3) of the CLSA
The Judge noted that s 10(3)(ba) was intended to address the point made by Mullighan J at first instance and by Gray J on appeal in R v Liddy (No 2),[4] namely, that there should be no mitigation where the offender has used his good character or good work as a mask or tool by which to access or control his victims.
[4] (2002) 84 SASR 231.
His Honour said that “the legislation is clearly directed, at least in part, to people who, by reason of their good character or lack of prior convictions, occupy positions within the community, paid or voluntary, which provide them with the opportunity to commit sexual offences against children”. His Honour characterised the appellant’s position as an Aboriginal Education Officer as being such a position. By reason of his employment, the appellant was able to access the girl. Furthermore, she was clearly infatuated with him, at least in part, because of his position. His Honour concluded that, by force of legislation, he could not have regard to the previous good character and lack of prior convictions in determining the appellant’s sentence.
His Honour said that the appellant’s offending was serious; that it was not impulsive but involved contact with the girl over a period of weeks. His Honour found that the conduct only stopped because of police intervention. He said the offending involved a grave breach of trust in circumstances where the appellant’s employment required him to focus on the welfare of Aboriginal students and to assist them in gaining an education. Instead of providing the girl with guidance, the appellant abused his position for his own sexual gratification.
Appellant’s submissions
Mr Mead SC, counsel for the appellant, submitted that the concession made by counsel before the Judge was made in error. He submitted that, having regard to the Second Reading Speech,[5] the mischief that Parliament sought to address by amending s 10(3) was to prevent good character being considered as a mitigating factor where an offender has used his good name as the means by which to commit his crime. Mr Mead contended that the legislation is not directed at those whose good character or lack of previous convictions provide opportunities to offend, but at those where those factors are of assistance in the commission of the offence. He argued that the Judge, by referring to the provision of opportunity, has amplified the scope of the provision beyond the limits of the words Parliament has used and intended. It was submitted that there was no evidence that the appellant’s good character had been of assistance to him in providing him an opportunity to commit the offences. Mr Mead also submitted that it should be borne in mind that the appellant did not initiate contact with the girl.
[5] South Australia, Parliamentary Debates, House of Assembly, 7 May 2014, 85-87 (the Hon John Rau).
Alternatively, it was submitted that in all the circumstances, even if the Court could not have regard to the appellant’s good character or lack of previous convictions, there was good reason to suspend the sentence on the basis of his:
_-good educational and employment history;
_-family situation including the illness of his stepfather;
_-prospects of rehabilitation and his age, having regard to Mr Balfour’s report where he concluded that there was fair to good prospects of rehabilitation with the assistance of a structured supervised rehabilitation program; and
_-remorse and contrition and the absence of a comorbid psychopathology, the psychologist’s opinion that his psychosocial problems which contributed to the offending would respond well to strict community supervision and assertive case management.
Respondent’s submissions
Mr Press SC, for the Director, submitted that the type of offending committed by the appellant has a particularly insidious effect upon the community when committed by those entrusted with the care of children. This offending was predatory and manipulative. The appellant gave evidence that he was not attracted to the girl and that, despite the content of his messages, he had no intention or desire to be with her. Mr Press submitted the offending was characterised by:
-the appellant’s age and the girl’s age at the time of the offending. He was 24 and he knew the girl was 13;
-the appellant initiating the sending of photos by sending a photograph of his penis;
-the appellant actively encouraging the victim to send photographs of herself to him;
-the appellant initiating the messages wherein he encouraged her to send videos of herself;
-the appellant encouraging the girl to masturbate, photograph that act and send the photographs to him;
-the appellant specifically saving photographs the girl sent to him in a folder in his phone intending to maintain possession of those images;
-the explicit text messages commencing at the latest on 16 April 2013 and the charged offences occurring in the first two weeks of May 2013 on a number of days;
-the appellant having time to reflect on his actions and desist; and
-the appellant putting his sexual gratification before the wellbeing of a 13 year old girl.
Meaning of “assistance”

Mr Press submitted that Parliament has not qualified the word “assistance” in s 10(3)(ba) by prefacing it with words such as “substantial”, “material” or “direct”. It was submitted that the word means nothing more or less than “help”.
It was argued that prior good character and lack of convictions may frequently be of assistance to the offender by:
-allowing, enabling or helping the offender to obtain a position, whether in paid employment or a voluntary position, in which the offender meets and has contact with children. Gaining initial access to the child is an essential step in the offending conduct. Having the opportunity to gain access is of significant assistance to any offender.
-allowing an offender to occupy a position that gives them access to children.
-allowing or helping the offender to present himself to the community as a person that can be entrusted with children.
-assisting in the development of an offender’s relationship with children, where children will be influenced by role models or those purporting to be role models.
It was submitted that what is immediately apparent is that any offence requires the ability to meet the child, maintain contact with the child, establish a rapport with the child, avoid suspicion and create opportunities to offend.
Evidence that the appellant’s good character or lack of prior convictions did provide an opportunity
The appellant’s role as an Aboriginal Community Education Officer and as a Flexible Learning Outcomes Case Manager required his attendance at the school; he had an office and he worked at the “A” Centre on the school grounds. Students were permitted to go into the Centre at recess and lunchtime. He occupied that position by reason of his good character and lack of prior convictions. It was pointed out that immediately upon his offending coming to light, he was stood down from all positions at the school and in his sporting pursuits. It was submitted that, given his immediate loss of employment, it can be inferred that his employment with the Department was dependent upon his previous good character and lack of prior convictions.
Mr Press submitted that the most difficult aspect of s 10(3)(ba) arises when considering the distinction between good character and lack of prior convictions. He referred to the decision in MAK v Police,[6] where Kourakis J (as he then was) doubted that evidence of the absence of prior convictions is evidence of good character.
[6] [2008] SASC 342 at [26]-[28].
Mr Press submitted that, when looking at the operation of s 10(3)(ba), it is necessary for the Court to distinguish between whether the good character assisted or the lack of prior convictions assisted. He submitted that it is important for any sentencing court to consider the impact that each one of the factors has had on the commission of the offending. In this case, he contended that there was an obvious link with the lack of convictions and the appellant obtaining his position at the school.
Mr Press referred to the obligation imposed by s 8B of the Children’s Protection Act 1993 (SA) (CPA) on government and non-government organisations providing education to undertake an assessment of a person’s criminal history prior to the person being appointed to or engaged to act in a prescribed position. A prescribed position is currently defined as being a position that requires or involves prescribed functions.[7] Relevantly, regular contact with children or working in close proximity to children on a regular basis is included in the definition of a prescribed function.
[7] Children’s Protection Act 1993 (SA) s 8B(8).
It is not clear on the evidence before the Court when the appellant was first employed by the Department. The appellant was interviewed by police on 15 May 2013. During that interview he said he was in his second year at the school. Mr Balfour records in his report that the appellant had been in fulltime employment as an Aboriginal Community Liaison Officer from the age of 20 to 24. The appellant turned 20 on 2 July 2008.
Section 8B of the CPA came into operation on came 31 December 2006. The Department has been required from that date to undertake an assessment of the criminal history of any person who, like the appellant would be, upon engagement, occupying or acting in a position involving regular contact with children.
Mr Press said that, as a matter of commonsense, people working with children are subject to criminal history checks and the appellant’s counsel’s submission that he might have got the job even if he had a conviction is not to the point. The point is that if his lack of prior convictions assisted him to get the job then that is sufficient.
The more difficult issue, it was submitted, is what role did good character play in him winning the position?
Mr Press said that the difficulty in this matter is that counsel for the appellant had made the concession during sentencing submissions to the effect that it was both good character and lack of prior convictions that assisted. As counsel did not make a distinction between the two, there was no reason for the Judge to make any other enquiry or for the prosecutor to make any other enquiry.
Mr Press contended that the appellant’s employment and/or good character assisted him in the commission of the offences in ways other than creating the opportunity. In his role as the school support officer, he had constant contact with the girl for several weeks. He admitted that, in the course of communicating with the girl, he arranged to meet her at the school during school hours on various occasions. She came to his office at the “A” Centre and assisted him with work on some occasions, he saw her at recess and lunchtime, and he had met her for coffee at the school. He was able to make her amenable to sexual activity by reason of his employment at the school as he was able to maintain a relationship with her.
Conclusion
I am of the view that s 10(3)(ba) of the CLSA does apply to the appellant. The appellant’s lack of convictions assisted him to win his position with the Department. That employment in turn facilitated the appellant maintaining contact with the girl after her initial contact and thereby assisted him to commit the offences. The appellant said during his evidence that the girl contacted him in his capacity as someone in the community who was well respected and who “people having issues came to”. He said she needed someone to talk to and did not have anywhere else to go. My assessment of his evidence is that his good character as a mentor within the community also assisted him in the commission of his offending. The Judge was not in error declining to take into account the appellant’s prior good character and lack of previous convictions.
The sexually explicit messages between the appellant and the girl reveal the sexual precociousness of the girl as well as her naiveté and immaturity.
Whilst the girl initiated the communications, the appellant did not put a stop to them. Rather, he escalated the sexual nature of the communications by sending a photograph of his penis, by actively encouraging the girl to send photographs and video of herself to him, and by encouraging her to masturbate, photograph that act and send the photographs to him.
The appellant was 24 and the girl was 13. It is evident from her statement that she admired him as a netball coach and player and looked up to him. He was a mentor to Aboriginal students and a liaison person between them, their families and the school. He held a position of trust and responsibility. He was entrusted with the care of students to facilitate their engagement in school. His offending was a gross breach of that trust.
The appellant, by his pleas to count 1 and 2, admitted that he abused his position of trust.[8]
[8] An aggravated offence against s 63B(3)(b) is committed if the offender abused a position of authority, or a position of trust in committing the offence. Employees such as the appellant who occupy education support roles and who are not registered teachers do not fall within the definition of a person in a position of authority in s 63B(6).
The fact that the offending was committed from a position of community trust demands a strongly deterrent sentence as “it is of great public importance that children are protected from the insidious advances of the very persons the community charges with the responsibility of protecting them”.[9]
[9] R v Bonython-Wright (2013) 117 SASR 410 at [100].
The significance of specific and general deterrence in the context of offending in a school environment by a person holding a position of trust demanded an immediate custodial sentence.
The oft quoted statement of Doyle CJ in R v D is apposite to this offending:[10]
Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.
[10] (1997) 69 SASR 413 at 423.
In my view, the Judge took into account all relevant matters and no error has been demonstrated. The Judge has correctly applied s 10(3)(ba) of the CLSA and no error has been identified in either the sentencing process or the outcome.
I would dismiss the appeal.
PARKER J: I agree that the appeal should be dismissed and with the reasons of Bampton J.
I also agree with the additional observations made by Vanstone J.