R v McIntyre - [2020] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCINTYRE
[2020] SASCFC 101
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Doyle and The Honourable Justice Hughes)
30 October 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
Crown application for permission to appeal against sentence.
The respondent pleaded guilty to one count of making a communication for a prurient purpose and with the intention of making a child under the prescribed age amenable to a sexual activity contrary to s 63B(2)(b) of the Criminal Law Consolidation Act 1935 (SA), and one count of unlawful sexual intercourse with a person under 14 years of age contrary to s 49(1) of the Criminal Law Consolidation Act. The maximum penalties for these offences were 10 years imprisonment for a basic offence and life imprisonment, respectively.
Utilising s 26 of the Sentencing Act 2017 (SA), the sentencing judge imposed one sentence for both offences. The respondent was sentenced to a notional head sentence of five years imprisonment. After a discount of 25 per cent on account of the respondent’s pleas of guilty, her Honour imposed a reduced head sentence of three years nine months imprisonment, and fixed a non-parole period of one year 11 months imprisonment (being approximately 51 per cent of the head sentence).
The appellant contends that the sentence is manifestly inadequate. In support of this ground, the appellant relies upon what it contends was both a manifestly inadequate starting point for the head sentence, and a manifestly inadequate non-parole period as a proportion of the head sentence.
Held per Doyle J (Stanley and Hughes JJ agreeing), granting permission to appeal and allowing the appeal:
1.      The notional starting point of five years imprisonment was manifestly inadequate having regard to the particularly serious features of the respondent’s offending (including the exploitation and abuse of power inherent in the respondent’s offending given his mature age and the victim’s young age and peculiar vulnerabilities), and the absence of any materially mitigating personal circumstances.
2.      The non-parole period of approximately 51 per cent of the head sentence was manifestly inadequate given the absence of any basis for optimism as to the respondent's prospects of rehabilitation, or for otherwise fixing a lenient non-parole period.
3.      It is appropriate that the Court intervene in this case, so as to maintain proper sentencing standards and so as not to threaten public confidence in the administration of justice.
4.      The sentence is set aside. The respondent is re-sentenced on the basis of a notional starting point of seven years imprisonment, which after a reduction of 25 per cent on account of the pleas of guilty results in a head sentence of five years three months imprisonment. The non-parole period is fixed at three years six months (being two-thirds of the head sentence).
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 63B(3)(b); Sentencing Act 2017 (SA) ss 26, 40(3)(a), 52, 53, 54, referred to.
R v MJJ; R v CJN (2013) 117 SASR 81; R v D (1997) 69 SASR 413; Glade v The Queen [2020] SASCFC 83; R v Chesterman [2017] SASCFC 31; R v LLK (2003) 231 LSJS 458; R v Sea (unreported, New South Wales Court of Criminal Appeal, 13 August 1990); Lipchin v The Queen [2013] NSWCCA 77; R v Hietanen (1989) 51 SASR 510; R v Johnston (1985) 38 SASR 582; R v Edwards [2016] SASCFC 145; R v Allpass (1993) 72 A Crim R 561; R v King [2009] NSWCCA 117; House v The King (1936) 55 CLR 499; Hili v The Queen (2010) 242 CLR 520; R v Morse (1979) 23 SASR 98; Pearce v The Queen (1998) 194 CLR 610; Markarian v The Queen (2005) 228 CLR 357; Johnson v The Queen (2004) 78 ALJR 616; Power v The Queen (1974) 131 CLR 623; Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525; R v Shrestha (1991) 173 CLR 48; Knight v Victoria (2017) 261 CLR 306; R v Creed (1985) 37 SASR 566; R v Sarandoglou (2010) 107 SASR 396; Foley v Police [2008] SASC 338; R v Major (1998) 70 SASR 488; R v Power [2008] SASC 288; R v Matthews [2008] SASC 259; R v Palmer [2016] SASCFC 34; Everett v The Queen (1994) 181 CLR 295; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 ; Cumberland v The Queen (2020) 94 ALJR 656 ; R v Harkin (2011) 109 SASR 334; R v Osenkowski (1982) 30 SASR 212 ; R v Nemer (2003) 87 SASR 168; R v Cushion [2014] SASCFC 68, considered.

R v MCINTYRE
[2020] SASCFC 101
Criminal of Criminal Appeal: Stanley, Doyle and Hughes JJ

STANLEY J: I would grant permission to appeal and allow the appeal. I agree with the orders proposed by Doyle J and with his reasons.
DOYLE J: This is an application by the Director of Public Prosecutions for permission to appeal against the sentence imposed upon the respondent.
The respondent pleaded guilty to two offences:
· count 1: making a communication for a prurient purpose and with the intention of making a child under the prescribed age amenable to a sexual activity (contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA), and in respect of which the maximum penalty for a basic offence was 10 years imprisonment); and
· count 2: unlawful sexual intercourse with a person under 14 years of age (contrary to s 49(1) of the Criminal Law Consolidation Act, and in respect of which the maximum penalty was life imprisonment).
Utilising s 26 of the Sentencing Act 2017 (SA), the sentencing judge imposed one sentence for both offences. Her Honour commenced with a notional head sentence of five years imprisonment. After a discount of 25 per cent on account of the respondent’s pleas of guilty, her Honour imposed a reduced head sentence of three years nine months imprisonment. Her Honour fixed a non-parole period of one year 11 months imprisonment (being approximately 51 per cent of the head sentence).
In seeking permission to appeal against this sentence, the sole ground relied upon by the Director is that the sentence is manifestly inadequate. However, in support of this ground, the Director relies upon what he contends was both a manifestly inadequate starting point for the head sentence for both offences of five years imprisonment, and a manifestly inadequate non-parole period as a proportion of the head sentence. The Director contends that by reason of either or both of these matters, the sentence imposed was so manifestly inadequate as to undermine public confidence in the administration of justice, and hence justifies and requires the intervention of this Court.
Circumstances of the offending
At the time of the offending, the respondent was 34 years of age.
The victim was 13 years of age. She was under the guardianship of the Minister for Child Protection, and was living in a residential care facility in the outer southern suburbs of Adelaide.
The respondent and victim met in December 2019 on a social networking and dating website for teenagers called MyLOL. Soon after meeting, the respondent obtained the victim’s mobile telephone number, and began communicating with her via text messages. The record of their text messages obtained from the victim’s mobile phone commences on 8 January 2020, and continues through to 28 January 2020 when one of the victim’s carers became aware of the messages and contacted police.
The text messages obtained from the victim’s phone show that throughout the course of 8 January 2020 the respondent sent the victim a number of messages that were inappropriate and sexualised in nature, and involved making arrangements to meet up with her the following day (count 1).
When interviewed by police on 29 January 2020, the victim said that after obtaining her mobile phone number through the MyLOL website, the respondent began texting “inappropriate stuff” to her, and was trying to meet up with her. After initially refusing to do so, she said that she agreed to meet up with the respondent. She described meeting the respondent, who had driven from the northern suburbs, at a shopping centre near where she lived. He then drove her to the beach, where they went for a walk on a walking trail. The victim was reluctant to explain further in her own words what then took place between her and the respondent. However, she told police that it was all contained in the messages on her phone, and that she was pregnant as a result of what had occurred. She said that she only met up with the respondent on that one occasion.
While the victim said that she met up with the respondent on the day before New Year’s Eve, it is apparent from the text messages obtained from the victim’s mobile phone that they in fact met up on 9 January 2020. The messages from that morning make it plain that the respondent and victim met up shortly after midday. The text messages between them ceased at that time, before resuming shortly after 5.00 pm that evening. The messages sent that evening were sexually explicit, and indicated that sexual intercourse had taken place (count 2). They included messages from the respondent asking the victim if she was “still sore”, and whether she was glad that he had “fucked her that deep”.
The act of sexual intercourse that occurred on 9 January 2020 was unprotected, and resulted in the victim becoming pregnant. The victim later underwent a termination of her pregnancy. DNA testing confirmed that the respondent was the father.
The text messages exchanged between the respondent and victim prior to them meeting up on 9 January 2020 make it plain that the defendant knew the victim’s approximate age, and that she was living in a care arrangement. The victim referred in those messages to shopping for items for school, and to not wanting to go to high school. She also referred on a couple of occasions to her not being able to meet up with the respondent until her carers allowed her to leave. While the respondent claimed that he thought the victim was 16 or 17 years of age based on “how she looked”, he acknowledged that he never asked her age. He certainly knew she was very young and of a school age, and hence less than half his age.
Over the slightly more than 24 hour period prior to them meeting up on 9 January 2020, the respondent sent the victim over 60 messages. As mentioned, many of them were inappropriate and sexually explicit in nature. The messages demonstrate a persistent and sustained effort to arrange a meeting with the victim so as to gratify his sexual desires.
The text messages obtained from the victim’s phone also include hundreds of messages exchanged between the respondent and victim in the period between the occasion of his offending on 9 January 2020 and the intervention of the victim’s carer on 28 January 2020.
As mentioned, during the evening of 9 January 2020, the respondent made reference to what had occurred when they met up during the afternoon. He proceeded to send further sexually explicit messages to the victim that evening, making it plain that he wanted to engage in further sexual activity with her. The respondent also sent a number of messages of a similar nature throughout the days and weeks that followed. While the messages sent after the offending on 9 January 2020 were not the subject of any charge, it is relevant to note that they included him repeatedly and persistently asking to meet up again with the victim to engage in further sexual activity; asking her to send him photos of her naked or in her school uniform; and describing the sexual activity he wished to engage in with her. At one point he also sent the victim a photograph of his erect penis.
Although the victim responded to the messages sent by the respondent, she did not instigate discussion on any of the above topics. To the contrary, she tended to respond in a fairly minimalist manner, often responding with one word answers. At various points her messages were suggestive of a reluctance to communicate. They included messages in which she said at various times that she could not deal with any sort of relationship with the respondent, and that she wished to cease contact because she was going through a very difficult time with her terminally ill father and with various other personal issues. In response to these messages, the respondent showed no concern for the victim’s wellbeing, but rather persisted in his pursuit of further sexual activity with her.
Curiously, the respondent’s messages during this period also included him repeatedly expressing a desire to get the victim pregnant. Later during this period, when the victim told the respondent that she thought she was pregnant, he suggested that she should keep the baby. In the same context, he also suggested that the victim might come and live with him and, indeed, that he might adopt her as his daughter.
On the evening of 28 January 2020, a senior youth worker with the Department for Child Protection working at the care facility where the victim was living became aware that the victim had been arguing with other youth workers about internet security and parental controls on her laptop. The victim was reluctant to provide her mobile phone password, and was defensive and verbally abusive to staff. This was considered to be uncharacteristic behaviour for the victim. That same night, after the victim had gone to bed, a routine search of her phone was undertaken by one of her carers, and the text messages referred to above were discovered. The matter was immediately reported to police.
The respondent was arrested on 29 January 2020. When interviewed, he declined to answer questions.
I have mentioned the police interview of the victim in which she described the respondent’s attempts to meet up with her, and her indirect confirmation that they had sexual intercourse.
The victim chose not to participate in the sentencing process, and elected not to provide a victim impact statement. However, the impact of the offending upon her was nonetheless a relevant sentencing consideration. Indeed, as elaborated upon below, the consequences of the offending for the victim were a significant factor in this case.
Personal circumstances of the respondent
As mentioned, the respondent was 34 years of age at the time of his offending. He is the oldest of five children. He had an unhappy childhood, particularly after the death of his mother when he was only 10 years of age. His father was physically and emotionally abusive towards him, his mother, and his siblings. He was close to his grandmother, but she died when he was 15 years of age. The respondent left home soon after that.
The respondent only attended school until year 9. After leaving school, he gained employment on a fishing boat with the assistance of his grandfather. He worked as a deckhand for four years. For the period of approximately 14 years leading up to his offending, the respondent worked regularly in various labouring jobs, including farm and construction work.
The respondent enjoys good physical health, apart from some chronic back pain and a need for regular investigation and check-ups as a result of a family history of colon cancer.
The respondent has a 13 year old daughter from a previous relationship. But he has not seen that daughter, or her mother, for a number of years. As at the date of sentencing, he was in a relationship with another woman. She was pregnant with a child of his at the time of his offending, and has since given birth to a daughter.
As the sentencing judge noted, the respondent has a substantial number of previous convictions. Most of them are driving offences, although they also include some property and dishonesty offences. Importantly, none of them are of a sexual nature, and none of them are of the seriousness of the present offending.
The sentencing judge received a report from a forensic psychiatrist, Dr Raeside. In addition to providing a general summary of the respondent’s personal background (along the lines of my summary above), Dr Raeside outlined the respondent’s long history of symptoms of depression and anxiety.
Dr Raeside did not consider that the respondent had any psychiatric disorder. Nor did the respondent appear to Dr Raeside to have any underlying personality disorder, albeit that he gave indications of some borderline and antisocial traits. But Dr Raeside did suggest that the respondent’s emotional state was reactive to stress, and had resulted in maladaptive patterns of behaviour, including self-harm and suicide attempts.
Dr Raeside noted that the respondent’s offending appeared to have occurred during a period of difficulties in his relationship with his current partner (who was pregnant at the time with his child). But, as Dr Raeside observed, “this clearly does not explain why Mr McIntyre would have been ‘unfaithful’ to his partner with a 13 year old girl.”
Dr Raeside concluded his report with the following summary of the respondent’s treatment and prognosis:
Mr McIntyre would potentially be benefited by psychological therapy to help him understand the nature and causes of his offending, as well as learn more adaptive ways of dealing with relationship difficulties and stress. He is not likely to receive individual psychological therapy in custody, but this could occur as part of a group based prison Sexual Behaviour Clinic (SBC) should he be assessed as suitable for that program.
Mr McIntrye does not require any specific psychiatric treatment. However, his suicide risk and risk of self-harm is likely to increase significantly with associated stress surrounding potential incarceration and he will require review by Prison Health about this.
Finally, it is difficult to assess Mr McIntyre’s future risk of similar or more general offending at this stage. His history of early age offending, together with the sexual nature of the current offence suggests risk of further reoffending in the future. He would require the SBC clinic to more accurately assess the risk of further sexual offending, particularly against children.
Sentencing remarks
The sentencing judge described the circumstances of the offending, and the personal circumstances of the respondent, in terms similar to the above.
The sentencing judge noted that, by reason of his pleas of guilty, the respondent had been convicted of two serious sexual offences for the purposes of s 52 of the Sentencing Act. However, her Honour took the view that they were committed on the one occasion; that is, the two offences were committed as part of one course of conduct, with the offending communication being for the purpose of the unlawful sexual intercourse. As such, the respondent was not to be sentenced as a serious repeat offender under s 53 of that Act, and was not exposed under s 54 to the potential for a sentence that was not proportional to the offending, or to a mandatory minimum non-parole period of four-fifths the length of the head sentence. This aspect of her Honour’s approach is not challenged on appeal.
The sentencing judge described the respondent’s offending as very serious, and the respondent’s text messages to the victim (including those sent subsequent to the offending) as “disgraceful, predatory and persistent.”
Her Honour emphasised the victim’s youth and vulnerability. She observed that while not having had the benefit of a victim impact statement, it was clear from the victim’s interview by the police and other material (including the victim’s text messages after the offending) that she was a particularly vulnerable young girl. Her Honour added that it was the experience of the courts that victims of such offences suffer long-term adverse effects. She emphasised the psychological and physical consequences of becoming pregnant in the circumstances the victim did, and of the likely significant and enduring consequences of having a termination of a pregnancy at only 13 years of age.

The sentencing judge summarised the effect of Dr Raeside’s report. Her Honour noted his recommendation that the respondent receive psychological therapy to help him understand the nature of his offending, and to develop better ways to deal with relationship difficulties and stress. Importantly, her Honour noted Dr Raeside’s concern that it was very difficult in the circumstances to assess the respondent’s future risk of similar offending.
Indeed, the sentencing judge went on to express some scepticism as to the respondent’s insight into his offending, and the genuineness of his commitment to rehabilitation. Her Honour said:
I am told that you are prepared to do as Dr Raeside recommends and that you are genuinely committed to rehabilitation. You say you do not want to do anything like this again. You say that you recognise the trauma that you caused your victim and you understand that she was vulnerable and needed protection. If this is so it is regrettable that you did not come to this realisation sooner.
The sentencing judge mentioned the importance of general and personal deterrence, and the need to protect young and vulnerable individuals in our community.
Her Honour noted the respondent’s pleas of guilty at the earliest opportunity, which entitled him to a discount of up to 40 per cent under s 40(3)(a) of the Sentencing Act. However, her Honour did not consider it appropriate to give him the benefit of the maximum available discount. Her Honour observed that while his pleas avoided the trauma of a trial for the victim, and demonstrated some remorse, nevertheless the case against the respondent on both counts was overwhelming. The sentencing judge concluded that in circumstances where the pleas arguably represented no more than a recognition of the inevitability of conviction, it was appropriate to apply a discount of 25 per cent.
Against that background, and utilising s 26 of the Sentencing Act to impose one penalty for both offences, the sentencing judge identified a notional starting point of five years imprisonment. Her Honour reduced that by 25 per cent on account of the guilty pleas, resulting in a head sentence of three years nine months imprisonment.
Finally, and without any further discussion or elaboration, the sentencing judge fixed a non-parole period of one year 11 months imprisonment (being approximately 51 per cent of the head sentence).
Some relevant features of the respondent’s offending and circumstances
There are a number of features of the respondent’s offending that makes it particularly concerning and egregious. It is also of note that there was very little in the respondent’s personal circumstances to suggest any reason for optimism in relation to his prospects for rehabilitation, or that was otherwise mitigatory in nature.
It is convenient to commence my consideration of the head sentence imposed by the sentencing judge by making some observations as to some of these aspects of the case.
The first matter I would emphasise is that while it was appropriate, given the relationship between the two offences,[1] that the sentencing judge utilised s 26 of the Sentencing Act to impose a single sentence, it must not be overlooked that the respondent fell to be sentenced for two offences. Further, they were both inherently serious offences, attracting maximum penalties of 10 years imprisonment and life imprisonment for counts 1 and 2 respectively. These severe maximum penalties are an indication of the seriousness with which Parliament treats offending of the present nature.
[1] Namely, that the communications the subject of count 1 were made with a view to arranging the meeting during which the unlawful sexual intercourse the subject of count 2 occurred.
Secondly, I would emphasise the inherent seriousness, and the implications for the application of ordinary sentencing principles, of sexual offending against children. It is offending which calls for a strong response in terms of deterrence, punishment, and the need to ensure the adequate protection of the community.
In R v MJJ; R v CJN,[2] Kourakis CJ emphasised the significance of deterrence:[3]
There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden. There is also a great social cost to the community. Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development. It also generates increasing suspicion and sensitivity about completely innocent behaviours. The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.
[2] R v MJJ; R v CJN (2013) 117 SASR 81.
[3] R v MJJ; R v CJN (2013) 117 SASR 81 at [84].
In R v D,[4] Doyle CJ also emphasised the insidious effect such offending has upon the community. His Honour described the feelings of outrage and revulsion often engendered in the community by such offending, and the need for the sentence to respond to these feelings. His Honour also mentioned the need to ensure that the sentence has an adequate punitive and deterrent effect upon the offender. His Honour explained:[5]
…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.
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.
It appears that the sexual abuse of children by persons in a position of trust is quite widespread … the offences that are involved come before the courts with disturbing frequency. It is for those reasons that I consider that the court should increase, to a moderate degree, the level of penalty imposed for such offences.
[4] R v D (1997) 69 SASR 413.
[5] R v D (1997) 69 SASR 413 at 423.
More recently, in Glade v The Queen,[6] Livesey J (Kelly and Bleby JJ agreeing) considered the application of various sentencing considerations to an offence of unlawful sexual intercourse with a child involving the use of a social media application. His Honour said:[7]
The purposes underlying the offence of unlawful sexual intercourse include protecting young people from predatory conduct by older people, and the adverse physiological and psychological consequences which can often follow.
In an age when the use of social media applications is becoming ever more prevalent, the need to protect the young from the consequences of their own conduct (which, as here, included deliberate deception by the younger person about her age) suggests that greater weight must increasingly be accorded to general deterrence. …
…
Accordingly, because an associated purpose underlying the offence of unlawful sexual intercourse is to protect young people against the consequences of their own immaturity, and not merely to deter older people from taking advantage of, or exploiting, the sexual inclinations of the young, general deterrence remains important even when there is a genuine belief that the victim is older.   This is an issue concerned with the protection of the community.
In those circumstances, the need to protect the young, and the weight which must be given to general deterrence, may well require that a first offender for this type of offence be imprisoned.
Sometimes the degree of acquiescence by the victim in sexual activity may be relevant when determining the objective seriousness of the offending, even though it cannot excuse it. However, even where a child encourages or actively pursues the relevant sexual activity, that may not diminish the seriousness of the offending, because in cases of a marked age disparity the child’s acquiescence is irrelevant to the criminality of conduct, particularly where it comprises exploitation.
[6]    Glade v The Queen [2020] SASCFC 83.
[7]    Glade v The Queen [2020] SASCFC 83 at [29]-[33].
A number of these general considerations are pertinent in the present case.
In many cases, including R v D, the fact that the sexual offending involved an abuse of trust will be an aggravating feature. And, as I said in R v Chesterman (Kelly and Parker JJ agreeing),[8] this abuse of trust is not always contingent upon a formal relationship between the adult offender and child victim:[9]
Further, in the context of offending by an adult against a child, there is often some level of abuse of trust even in circumstances where the adult offender does not hold any formal position of trust. In a case, such as the present, where there has been a history of interaction between the child victim and adult offender, the child will often have developed a level of trust in the adult. The adult will often have assumed a position of authority and influence. That relationship of trust is even more likely, and even more significant, in the case of an intellectually disabled child. While not intending to diminish the significance of the existence of a formal relationship of trust, there will in some cases (such as the present) be a degree of trust, authority and influence, and consequential vulnerability, that falls short of a formal relationship of trust, but which is nevertheless relevant to a defendant’s culpability. Further, and in any event, the existence of a relationship of trust is but one of the range of matters relevant to the sentence ultimately imposed.
[8] R v Chesterman [2017] SASCFC 31.
[9] R v Chesterman [2017] SASCFC 31 at [46].
In the present case, a ‘relationship’ of sorts did arise between the respondent and the victim by reason of their text messages. I am not sure that it can aptly be described as a relationship of trust. However, in my view, similar considerations arise by reason of the exploitation or abuse of the respondent’s power and influence over the victim inherent in his offending.[10]
[10] See, for example, R v LLK (2003) 231 LSJS 458; [2003] SASC 431 at [5]; R v Cushion [2014] SASCFC 68 at [21].
The relevance of exploitation was a matter addressed in the following passage from the reasons of Badgery-Parker J in R v Sea:[11]
If one tries to draw a line through all of the cases it seems to me that one of the most significant matters and, indeed, probably the most significant of the matters which determine where a particular offence is to be placed in the spectrum of offences of this kind must be expressed in terms of the degree to which the offender is seen to have exploited the youth of the girl.
[11] R v Sea (unreported, New South Wales Court of Criminal Appeal, 13 August 1990), as quoted in Lipchin v R [2013] NSWCCA 77 at [23].
By reason of the respondent’s adult age and life experience, and the victim’s young age and relative immaturity, the respondent had an inherent advantage over the victim in terms of his ability to control and manipulate the communications and relationship between the two of them to suit his purposes. While such an advantage or imbalance will routinely exist between an adult offender and child victim, particularly when the age gap is as significant as it was in this case, it was exacerbated in the present case by the peculiar vulnerability of the victim as a child in the care of the State with obviously difficult personal circumstances. The respondent was at least to some extent aware of the victim’s peculiar vulnerability, but chose to exploit his influence and advantage to satisfy his inappropriate sexual desires.
A third matter of significance is that while the respondent is only to be punished for the two offences for which he was convicted, his conduct after the offending makes it plain that he was not entitled to be sentenced on the basis that this was a relatively spontaneous or one-off offence that involved a temporary lapse in the respondent’s judgment. To the contrary, the factual basis upon which the respondent was sentenced made it plain that he had every intention of committing further offences had he not been interrupted by the intervention of one of the victim’s carers and the police.
Even the communications over the course of 8 January 2020 that constitute count 1 occurred over a number of hours and involved a lengthy and sustained effort to arrange a meeting with the victim. The respondent had plenty of time and opportunity to reconsider whether it was appropriate to go through with his plan to meet the victim, or indeed to engage in sexual activity with her once they met. But he pressed ahead, undoubtedly knowing that his conduct involved serious criminal offending.
Further, once the sexual intercourse the subject of count 2 had occurred, there was no hint from the respondent that he regretted his conduct. To the contrary, he immediately resumed sending explicit communications to the victim, and attempting to convince her to engage in further sexual activity with him. And, as outlined above, over the following days and weeks he continued to do so, engaging in a persistent campaign of explicit text messages in an attempt to use his influence and advantage over the victim to persuade her to let him further indulge his inappropriate sexual desires. He showed every sign of wishing and intending to offend again, and in all likelihood would have done so were it not for the intervention of the victim’s carer and police.
Fourthly, there is the matter of the consequences of the respondent’s offending for the victim. It is trite that those consequences inform the gravity of the offending, and are hence relevant to the sentencing exercise.[12] This is confirmed by the requirement under the Sentencing Act that the Court take into account, to the extent it is known, the personal circumstances and vulnerability of the victim (s 11(1)(b)), and the extent of any injury, emotional harm or significant risk resulting from the offending (s 11(1)(c)).
[12] R v Hietanen (1989) 51 SASR 510 at 517; R v Johnston (1985) 38 SASR 582; R v Edwards [2016] SASCFC 145 at [31].
Here, the victim did not provide a victim impact statement. However, in cases involving sexual offending against a child, a significant level of psychological harm can be inferred even without direct evidence. Indeed, such harm will often be enduring, and in some cases debilitating. It may adversely affect the victim’s ability to form and maintain intimate relationships, and other close or trusting relationships. It may also adversely affect the victim’s emotional and mental health more generally. The likelihood of such harm was a matter adverted to in the passages extracted above from the reasons of this Court in R v D and R v MJJ; R v CJN.
In R v Allpass,[13] the New South Wales Court of Criminal Appeal said the following of the Court’s ability to infer a significant level of harm, or at least an exposure to a significant risk of such harm, in cases of sexual offending against children:[14]
… when one is talking about the long-term consequences of a sexual assault upon a child of tender years, psychological consequences are likely to be at least as important as physical consequences. There was no evidence one way or the other concerning any psychological harm suffered by the [victim], and it may well be that, at this stage, no-one knows what harm of that kind there will be. It is true that the Crown did not set out to demonstrate … that the complainant would suffer adverse long-term consequences of a psychological nature, but it is in the nature of an offence of this kind that it is apt to produce such consequences even though they may not manifest themselves until some time in the future. That is an important aspect of the objective gravity of such offences.
[13] R v Allpass (1993) 72 A Crim R 561.
[14] R v Allpass (1993) 72 A Crim R 561 at 565 (The Court).
The same Court made similar observations in the more recent decision of R v King:[15]
The fact that the Judge had no evidence of prolonged damage to the child is of no mitigating value. ...
No one could know at the date of sentencing what emotional or psychological harm might have been occasioned to the child in the long term. … It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child who is old enough, as was the complainant, to appreciate the significance of the act committed by the offender. It should be assumed that there is a real risk of some harm of more than a transitory nature occurring. That should be a factor taken into account when sentencing for a child sexual assault offence. It is an inherent part of what makes the offence so serious.
[15] R v King [2009] NSWCCA 117 at [40]-[41] (The Court).
In the circumstances of the present case, there is the additional consideration that the evidence revealed that the victim became pregnant as a result of the unlawful sexual intercourse the subject of count 2, and that the victim subsequently underwent a termination of that pregnancy. The fact that the respondent chose to engage in the subject offending without using any form of protection, and hence chose to expose the victim, a child, to the risk of pregnancy was itself an aggravating feature of his conduct. But the fact that that risk eventuated, and was followed by a (predictable) termination, is also a very relevant consideration.
The emotional and psychological consequences for any young woman who suffers an unwanted pregnancy, and then a termination of that pregnancy, may generally be accepted as significant. While the Director drew this Court’s attention to some studies suggesting an increased long-term susceptibility to mental health difficulties for such women, I would have thought this could be safely inferred even in the absence of such evidence.
I also accept the Director’s submission that consequences of this nature are likely to be worse for a 13 year old girl in the care of the State, who is inherently vulnerable and immature, and does not have the benefit of any close familial support. It is likely that those consequences will be not only immediate, but also enduring and potentially life-long. While their intensity may vary from time to time, there is a real risk that they may at least at times be quite profound.
Turning to some of the features of the case arising out of the respondent’s personal circumstances, I accept that his plea of guilty was a relevant consideration. However, as the parties accept, it was appropriate in the circumstances of the present case for her Honour to confine the respondent to a discount of 25 per cent (rather than the maximum available to him of 40 per cent) on the basis that his plea appeared to be largely a recognition of the overwhelming prosecution case against him, and hence the inevitability of him being convicted. The respondent is entitled to this reduction on account of the utilitarian benefit of his plea in terms of avoiding the trauma likely to be associated with the victim having to give evidence, and the resources associated with a trial. And while the sentencing judge was entitled to infer some level of remorse inherent in the plea, I do not think a plea in the circumstances of a case such as the present – that is, when there is a strong prosecution case, and the plea is not accompanied by any other evidence indicative of remorse or contrition – is a basis to infer any significant level of remorse or contrition.

To the contrary, what little evidence of relevance there was in the present case rather suggested a lack of any meaningful insight on the part of the respondent into his offending, let alone any remorse or contrition.
An illustration of this last matter is the respondent’s conduct in downplaying, if not distorting and lying about, the circumstances of his offending when recounting them to Dr Raeside. According to Dr Raeside, the respondent told him that his offending occurred when “some girl started hitting on me on the dating site” that he had been using; that she had initiated the communication and wanted to meet up with him; that he agreed to meet up, and “it all happened”; that there was subsequently some communication between them, but that he was busy and after she texted him a few times, and he responded, the messages eventually “dropped off”.
As is readily apparent from a comparison between this version of events and my earlier summary of the factual basis for sentencing (which accords with the record of the text messages in evidence), the version provided by the respondent to Dr Raeside in some respects downplayed his offending, and in other respects was simply false. The respondent’s conduct in describing his offending in the manner he did is indicative of a lack of any meaningful insight into, and a failure to accept responsibility for, the gravity of his offending.
While the respondent’s counsel relied upon his client’s apparent willingness to undertake the treatment recommended by Dr Raeside, the sentencing judge was entitled to express the scepticism she did as to the genuineness of the respondent’s commitment to rehabilitation.
Ultimately, it seems to me that Dr Raeside’s report is most notable for what it does not say. It does not contain any reference to the respondent having shown any meaningful insight into his offending, or having expressed any remorse or contrition. In the circumstances, it was not surprising that Dr Raeside expressed a concern that the respondent was at risk of offending again in the future, and was not able to provide the Court with any comfort as to the respondent’s prospects for rehabilitation.
Consideration of the head sentence
The Director’s challenge to the respondent’s head sentence is based solely upon a contention of manifest inadequacy; that is, a contention that the head sentence was unreasonable or plainly unjust in the sense required by House v The King.[16]
[16] House v The King (1936) 55 CLR 499 at 504-505.
In Hili v The Queen,[17] the plurality of the High Court stated:[18]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. …
[17] Hili v The Queen (2010) 242 CLR 520.
[18] Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The plurality went on to explain that “what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence.”[19] An assessment of whether a sentence is manifestly excessive or inadequate thus requires a consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[20] But ultimately, manifest excess or inadequacy is a conclusion, and may not permit of lengthy exposition.
[19] Hili v The Queen (2010) 242 CLR 520 at [60].
[20] R v Morse (1979) 23 SASR 98 at 99 (King CJ).
In applying this approach, it must of course be borne in mind that there is no single correct sentence,[21] and that sentencing judges should be allowed “as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.”[22]
[21] Pearce v The Queen (1998) 194 CLR 610 at [46] (McHugh, Hayne and Callinan JJ); Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[22] Johnson v The Queen (2004) 78 ALJR 616 at [26] (Gummow, Callinan and Heydon JJ); Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
Here, I have had regard to all of the considerations mentioned by the sentencing judge, as emphasised and elaborated upon above. At the risk of unnecessary repetition they may be summarised as including: the fact the offending involved two offences, each with a very substantial maximum penalty; the insidious nature of child sex offending and its consequences, and the resulting need for a strong sentencing response; the high degree of exploitation and abuse of power and influence in the present case given the respondent’s mature age and his victim’s young age and peculiar vulnerabilities; the likely long-term and profound impact of the offending upon the victim given her vulnerability, as exacerbated in this case by the fact that the respondent’s offending caused her to become pregnant and to undergo termination of that pregnancy; the respondent’s lack of any regret, and demonstrated desire and intention to pursue further sexual activity with the victim; the respondent’s lack of any meaningful insight into his conduct, let alone any remorse or contrition; and the appropriately cautious assessment of his prospects for rehabilitation and risk of reoffending. While I have not overlooked the significance of the respondent’s pleas of guilty, the absence of any relevant prior offending and his expression of a preparedness to undergo the recommended rehabilitative treatment, I have explained their limited significance in the overall circumstances relevant to the respondent’s sentence.
Having had regard to all of these matters, I am satisfied that the starting point of five years was manifestly inadequate. In my view, that notional starting point was outside the permissible range having regard to the particularly serious features of the respondent’s offending that I have sought to identify, and the absence of any materially mitigating personal circumstances.
Consideration of the non-parole period
The Director also complains that the non-parole period in the present case, being one year 11 months, and hence approximately 51 per cent of the respondent’s head sentence (after a reduction of 25 per cent), was manifestly inadequate as a proportion of the head sentence.
While acknowledging the broad discretion available to a sentencing judge in fixing a non-parole period, the Director contends that there was simply no basis – either in the sentencing judge’s remarks, or in the material available to her Honour – to fix a non-parole period which was at the bottom of the usual range for non-parole periods. To the contrary, the Director contends that in light of the concerns expressed by Dr Raeside, and indeed the sentencing judge, as to the respondent’s prospects for rehabilitation and risk of reoffending, it was not reasonably open to fix such a low non-parole period.
Taking a step back for the moment, it is settled that a non-parole period is intended to reflect the minimum proportion of the head sentence that must be served in order to achieve the purposes of the head sentence.[23]
[23] Power v The Queen (1974) 131 CLR 623 at 629 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J), 538 (Dawson, Toohey and Gaudron JJ); R v Shrestha (1991) 173 CLR 48 at 62-63 (Brennan and McHugh JJ), 69 (Deane, Dawson and Toohey JJ); Hili v The Queen (2010) 242 CLR 520 at [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Knight v Victoria (2017) 261 CLR 306 at [8] (The Court).
As Mason CJ and McHugh J explained in Bugmy v The Queen,[24] it follows that all factors relevant to the determination of the head sentence are relevant to the determination of the non-parole period. Speaking of the consequential need to ensure that the non-parole period reflects a proper proportion of the head sentence, King CJ with whom Cox and Olsson JJ agreed) said in R v Creed:[25]
In fixing a non-parole period, as in fixing a head sentence, a judge has to bear in mind the purposes for which sentences are imposed. The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard both to the offence and the offender, and it must reflect the community's sense of justice, what in some of the cases is called "the moral sense of the community". For that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.
In every case, but particularly in the case of serious crimes such as the present, it is necessary that the non-parole period, no less than the head sentence, operate as a deterrent to others who may be minded to commit similar crimes. It is necessary for the courts in fixing non-parole periods, just as in fixing head sentences, to convey a message to those who may be tempted to commit similar crimes, serious crimes, that the commission of those crimes will result in a period spent in prison of a sufficient duration to operate as a real deterrent. It is necessary, moreover, that the courts in fixing non-parole periods, no less than in fixing the head sentence, should make it clear that if there is repetition of crime, there will be no question of the punishment for the subsequent crimes being absorbed in that which is imposed for the earlier crimes, but that on the contrary the offender will have imposed upon him salutary punishment for the subsequent crimes also. The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventive purposes of punishment. The preventive purpose of punishment requires that a serious offender be deprived of the opportunity of posing any further threat to the public for a period of time which the gravity of his conduct justifies.
[24] Bugmy v The Queen (1990) 169 CLR 525 at 531.
[25] R v Creed (1985) 37 SASR 566 at 568.
Kourakis J (as he then was) made observations to similar effect in R v Sarandoglou:[26]
… Moreover, the very proposition that the non-parole period must, “no less than the head sentence”,[27] also reflect the need for punishment, deterrence and prevention necessarily entails a proportionate relationship between the non-parole period and the head sentence. There is an indissoluble and correlative relationship between the proportion of the head sentence spent in custody and the proportion spent on parole. I find it conceptually impossible to conceive the period of imprisonment which is the minimum necessary for deterrence and punishment without also determining the scope to allow for parole because a view about one will necessarily affect the position taken on the other. Moreover, the same factual circumstances will be relevant to both the head sentence and the non-parole period.
The process which I have just described is, as I observed in Foley v Police,[28] the reason that non-parole periods are often fixed at what is sometimes called the usual proportion.[29]
In R v Shrestha, Deane, Dawson and Toohey JJ explained that:[30]
Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing Judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine according to the circumstances which then exist, whether the offender should be released on parole.
It follows that, although a non-parole period is fixed as a certain period of time, it must necessarily reflect a proper proportion of the head sentence. …
[26] R v Sarandoglou (2010) 107 SASR 396 at [33]-[36].
[27] Rv Creed (1985) 37 SASR 566 at 568 per King CJ.
[28] Foley v Police [2008] SASC 338 at [17].
[29] R v Major (1998) 70 SASR 488 at 492 per Doyle CJ; R v Power [2008] SASC 288 at [29] per Sulan J, Doyle CJ and Besanko J agreeing; R v Matthews [2008] SASC 259 at [12]-[13] per Kelly J, Duggan and Anderson JJ agreeing.
[30] R vShrestha (1991) 173 CLR 48 at 69.
That said, having regard to the different function to be served by the non-parole period, the weight to be ascribed to the various sentencing considerations may differ. Factors personal to the defendant, and in particular those relevant to his prospects for rehabilitation, may assume a greater significance when fixing a non-parole period than they carried when arriving at an appropriate head sentence.
Mason CJ and McHugh J made observations to this effect in Bugmy v The Queen:[31]
A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v. The Queen [No. 2], whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.
In fixing a minimum term, a sentencing judge is bound to give close attention to the danger which the offender presents to the community. Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community. But that difficulty does not relieve the judge of his or her responsibility to take account of the need to protect the community. Necessarily the judge will be influenced by an assessment of the material before the court as to the prisoner's prospects of rehabilitation. If the judge's assessment of those prospects is that they are minimal or bleak, a minimum term should be fixed in the light of that assessment, along with the other factors relevant to the fixing of the minimum term.
[31] Bugmy v The Queen (1990) 169 CLR 525 at 532.
This Court has likewise emphasised the significance of the offender’s personal circumstances, and in particular those that inform his prospects for rehabilitation, in fixing a non-parole period.[32]
[32] See, for example, R v Palmer [2016] SASCFC 34 at [3] (Kourakis CJ) and [26] (Stanley J).
It is accepted that there is no norm for a non-parole period, or prescriptive range within which all non-parole periods must fall.[33] While thus emphasising the breadth of the trial judge’s discretion when fixing a non-parole period, it would at the same time be unrealistic to ignore that ordinarily (and in the absence of statutory intervention) an appropriate non-parole period will be somewhere around the range from about half to three-quarters of the head sentence. As Kourakis CJ said in R v Palmer:[34]
Nonetheless the discretion demands a balancing of the competing sentencing objectives. A judge’s prediction about an offender’s future behaviour is not the determinative criterion. Indeed judges neither have a crystal ball nor any special intelligence with which to make such predictions. The need for punishment and protection will generally result in non-parole periods of between one half and three quarters of the head sentence. Where in that range, or in special cases where outside that range, the non-parole period is fixed will depend on a realistic balancing of positive and negative indications of the offender’s prospects of rehabilitation. That balancing does not necessarily entail the making of a prediction. This is a fraught area. There is a real risk of heuristic error by judges who, for one reason or another, believe they have gained an intuitive understanding of the psychology of the defendants they are sentencing. The safer course is to fix a lower or higher proportion by reference to the usual range depending on whether the offender has relatively poor or good indications for rehabilitation. That assessment must be based largely on factors like the offender’s antecedents, previous responses to community corrections orders, degree of contrition and demonstrated willingness and capacity to overcome criminogenic factors. (my emphasis).
[33] Hili v The Queen (2010) 242 CLR 520 at [36]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[34] R v Palmer [2016] SASCFC 34 at [4].
I would emphasise his Honour’s reference in the underlined passage to the need for a realistic balancing of positive and negative indications of the offender’s prospects of rehabilitation when fixing a non-parole period.
Against this background, it is appropriate to commence my application of these principles to the present case by acknowledging the significant degree of latitude that should be afforded to a sentencing judge when fixing a non-parole period. It involves a difficult and nuanced balancing exercise. It inherently permits of a range of potentially appropriate outcomes, depending upon the views of the individual sentencing judge.
The difficulty in the present case is that the sentencing remarks do not indicate that the sentencing judge embarked upon, or that the non-parole period ultimately fixed was a product of, any such balancing exercise. In saying this, I am conscious that an appellate court must bear in mind the nature of sentencing remarks, and the desirability of them being succinct, avoiding unnecessary repetition, and being in terms that will be understood by the respondent. But even reading the sentencing judge’s remarks in that light, and considering them as a whole and in the context of the sentencing submissions and materials, her Honour has not identified any considerations that might justify a non-parole period towards the bottom of the usual range, let alone right at the bottom of that range.
To the contrary, to the extent the judge mentioned matters of significance to the respondent’s prospects of rehabilitation it was to emphasise her Honour’s view as to the limited remorse inherent in the respondent’s pleas of guilty, and to express her Honour’s scepticism as to the genuineness of his commitment to the rehabilitative treatment suggested by Dr Raeside. While the respondent’s lack of prior relevant offending remained a potential reason for some hope, this was in my view of limited significance in the scheme of things, particularly given the sustained nature of the respondent’s inappropriate conduct in connection with his present offending.

More fundamentally, and putting to one side the matters expressly referred to by the sentencing judge, there was nothing in the material available to her Honour beyond what I have just mentioned to suggest any basis for optimism as to the respondent’s prospects of rehabilitation. In my view, given the lack of insight into his offending that the respondent demonstrated when interviewed by Dr Raeside, and the absence of any indication that the respondent has accepted responsibility for his offending, let alone expressed any remorse or contrition, there was no basis for a lower than usual non-parole period. In my view, the non-parole period of approximately 51 per cent of the head sentence was manifestly inadequate.
Principles governing Crown applications for permission to appeal
Despite my conclusion that the Director has established manifest inadequacy in both the head sentence and non-parole period imposed by the sentencing judge, it does not necessarily follow that permission to appeal should be granted. The circumstances in which permission to appeal will be granted on a Crown appeal are confined to rare and exceptional cases.[35]
[35] Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson & Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [1]-[2] (French CJ, Crennan and Kiefel JJ); Cumberland v The Queen (2020) 94 ALJR 656 at [4]-[6], [33] (Bell, Gageler and Nettle JJ).
The rare and exceptional case is one where allowing the appeal is desirable in order to address an error of principle, establish and maintain adequate standards of sentence, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, or to correct a sentence which is so inadequate that it amounts to an error of principle.[36]
[36] R v Harkin (2011) 109 SASR 334 at [19] (Gray & Sulan JJ); R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ); House v King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt & McTiernan JJ).
Alternatively, if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake the public confidence in the administration of justice, it may be appropriate to grant permission to appeal even though no point of general principle will be established by the case.[37]
[37] R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ); R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ).
Conclusion
In my view, while conscious of the sound reasons for the Court’s usual reticence to intervene on the grounds of manifest inadequacy, this is an appropriate case in which to do so. I consider that the head sentence imposed did not adequately reflect the various features of the case to which I have referred. I also consider that the non-parole period fixed by her Honour did not reflect the approach required by the authorities to which I have referred, given the dearth of anything in the respondent’s offending or personal circumstances to suggest he had good prospects of rehabilitation or was otherwise an appropriate candidate for a lenient non-parole period.
In the circumstances, I am satisfied that it is appropriate for this Court to intervene in the present case so as to maintain proper sentencing standards and so as not to threaten public confidence in the administration of justice. I would thus grant the Director permission to appeal and allow the appeal.
Resentence
Having decided to grant permission to appeal, and allow the appeal, it is appropriate for this Court to resentence the respondent.
Like the sentencing judge, I would utilise s 26 of the Sentencing Act to impose a single penalty in respect of both offences. Given the various matters mentioned above in relation to both the circumstances of the offending and the personal circumstances of the respondent, I consider that an appropriate starting point is a notional head sentence of seven years imprisonment. For the reasons given by the sentencing judge, I would reduce this by 25 per cent on account of the respondent’s early pleas of guilty, giving a reduced head sentence of five years three months imprisonment.
Turning to the non-parole period, the respondent’s lack of any prior offending of a similar nature, and his asserted preparedness to undertake any treatment that might be made available to him, provides some basis for believing that the respondent may be amenable to rehabilitation. However, given the respondent’s apparent lack of insight into the seriousness of his offending, and the absence of any display of contrition or remorse, his prospects for rehabilitation are at best guarded or moderate. I would fix a non-parole period of three years six months imprisonment (being two-thirds of the respondent’s head sentence).
Orders
For the reasons set out, I would grant permission to appeal and allow the appeal. I would set aside the sentence imposed, and substitute a sentence of five years three months imprisonment. I would fix a non-parole period of three years six months imprisonment. Like the sentencing judge, I would backdate the head sentence and the non-parole period to 25 August 2020.
HUGHES J: I would grant permission to appeal and allow the appeal for the reasons given by Doyle J. I would make the orders his Honour proposes.