R v Petrovski - [2005] SASC 330

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PETROVSKI
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
1 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appellant pleaded guilty to two counts of unlawful sexual intercourse and two counts of indecent assault - appellant was sentenced to 15 months imprisonment with a non-parole period of 6 months - victim aged 13 years and 9 months, appellant aged 19 years - victim willing participant in sexual contact - sexual contact took place at victim's mother's home - whether sentence imposed manifestly excessive - whether sentence ought to have been suspended - consideration of circumstances of offending - consideration of appellant's personal circumstances - consideration of relevant sentencing principles - sentencing judge erred in finding aggravating features of offending and failed to pay adequate regard to the appellant's mental illness - held by majority: appeal allowed - appellant resentenced - suspended sentence of 15 months imprisonment imposed on condition that appellant enter into bond to be of good behaviour for two years.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38(1), referred to.
R v D (1997) 69 SASR 413; R v Hunter (SA CAA, Judgment No. S4231, 20/10/1993); R v Halse (1977) 70 SASR 456; R v Sherratt (1993) 171 LSJS 482; R v TG [2005] SASC 58; R v Temby [2003] SASC 230; R v Oberthur [1998] SASC 6881; R v Ahlburg (SA CAA, Judgment No S4628, 21/6/94); Coombe v Douris (1987) 47 SASR 324; Eldridge v Bates (1989) 51 SASR 532; R v Humby [2004] SASC 358; Pointon v Police [2004] SASC 4; R v Wong (2001) 207 CLR 584; Markarian v The Queen (2005) 79 ALJR 1048; R v Williams (1990) 53 SASR 253, considered.

R v PETROVSKI
[2005] SASC 330
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: I have read the reasons prepared by Gray J.
He sets out the circumstances of the offences, the matters relevant to sentence, the course of submissions before the District Court and the issues raised on appeal. There is no need for me to repeat that material.
This Court can intervene only if satisfied that the District Court Judge erred.
I begin by considering the head sentence and non-parole period.
The offences are serious offences. Each offence of unlawful sexual intercourse attracted a maximum punishment of imprisonment for seven years. Each offence of indecent assault attracted a maximum punishment of imprisonment for eight years.
A purpose of the law creating these offences (in relation to indecent assault I refer to the fact that by law the victim was incapable of consenting to the appellant’s conduct) is to protect young persons from predatory conduct by others. That is a factor in the present case, although having regard to the respective ages of the appellant and the victim it is not of great significance. Another purpose of the law, of more importance in the present case, is to protect young persons against their own immaturity. The fact that the victim consented to the conduct constituting the offences in question does not diminish the seriousness of the offending.
It was open to the Judge to conclude that a significant sentence of imprisonment was appropriate. The offences were not isolated and impulsive acts. Although committed over a short period of time, the four offences to which the appellant pleaded guilty were committed in the context of a course of conduct involving other like acts, not the subject of charges. As well, the offending conduct was resumed when the appellant returned to the victim’s home after Christmas. The fact that the victim was only 13 years of age is significant. Although the appellant was only 19 years of age, the difference in maturity between the average 13 year old and the average 19 year old is significant. I have not overlooked the evidence that the appellant was somewhat immature, and inclined to behave impulsively, possibly because of a condition of attention deficit hyperactivity disorder. But the course of conduct involved, and the evidence that the appellant was fully aware of his wrong doing, make it difficult to put too much weight on the appellant’s suggested immaturity.
It is also relevant that the victim impact statement discloses that the appellant’s conduct has had adverse effects on the victim, and on relationships within the family. The supervision exercised by the victim’s mother seems to have been inadequate, but there is no suggestion that the appellant thought that the victim’s mother was condoning his conduct in any way.
Another relevant factor is the importance of general deterrence, although at the end of the day that has to be considered alongside other relevant factors.
There were of course mitigating factors, and I will come to them in a moment. But in light of the matters to which I have referred, it was open to the Judge to conclude that the sentence that he imposed was appropriate, despite those mitigating factors.
I turn to the Judge’s decision not to suspend the sentence. By s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA), the Judge had power to suspend the sentence if he thought there was “good reason” to do so. The Judge had to consider the case as a whole, and in particular whether it was appropriate to give the appellant a last chance to avoid imprisonment, having regard in particular to the appellant’s circumstances, but still taking into account the circumstances of the offences generally. As this Court has said time and again, due allowance must be made for the element of judgment or discretion that must be exercised by a sentencing judge.
There is no indication in the present case that the Judge acted on a wrong principle. As is usually the case, it is a question of whether the Judge appears to have given undue weight to matters that are peripherally relevant or irrelevant, or not to have given sufficient weight to matters that are relevant. Another matter that needs to be considered is whether the end result is so unreasonable that the Court should infer that the Judge has failed to make a sound judgment.
There were mitigating circumstances that called for careful consideration. The appellant is relatively young. He appears to be somewhat immature for his age, and inclined to behave impulsively, although I have explained why only limited weight can be given to that consideration. More significantly, the appellant has only one relatively minor offence in his past, and has never been imprisoned before, or even had the benefit of a suspended sentence. This is a factor of considerable weight. The importance of protecting young members of our community, and the importance of general deterrence in relation to offending of the kind in question, will often mean that a first offender committing offences such as these must be imprisoned. But when, as here, the offender is a young man who is somewhat immature, and who has only one minor offence in his past, the case for refraining from imprisoning him for the first time is the stronger. It is also relevant that, in my judgment, a suspended sentence is likely to be a sufficient deterrence for the appellant, but I remind myself of the need to consider the importance of general deterrence.
Taking these matters into account, did the Judge err? The Judge referred to the aggravating features of the case. This appears to be a reference to the fact that the victim was only 13 years of age, the fact that the appellant initiated the offending conduct and continued to offend over a period of time, and the fact that he was a guest in the victim’s home. Although the Judge did not refer specifically to the factors that I identified as supporting suspension of the sentence, there is no reason to think that he overlooked these matters. It is not necessary, when considering whether to suspend a sentence, for a sentencing judge to rehearse all of the relevant factors that point either way. I am not persuaded that the Judge failed to consider relevant factors, or took into account irrelevant factors.
Is the Judge’s decision one that leads to the conclusion that some unidentified error has been made?
I have found this case a difficult one. I am fully conscious of the element of judgment involved. But in the end I have come to the conclusion that the appellant’s age and immaturity, and the fact that he has not been imprisoned before, were entitled to much more weight than the Judge was prepared to give them. I have come to the conclusion that this is a case that called for the sentence to be suspended.
Accordingly, I would allow the appeal, set aside the sentence imposed by the District Court, order that the appellant be imprisoned for 15 months, fix a non-parole period of six months, and order that the sentence be suspended upon the appellant entering into a bond to be of good behaviour for a period of two years, and on condition that the appellant be under the supervision of a Community Corrections Officer for that period of two years.
BLEBY J: I am grateful to Gray J for setting out the circumstances of the offending the subject of this appeal and the relevant personal circumstances of the appellant. I will not repeat them.
I am not satisfied that the sentence imposed by the sentencing Judge or his process of arriving at that sentence was attended by any error. In particular, I consider that it was open to the sentencing Judge to decide not to suspend the sentence.
The appellant was young and without previous convictions, although he had been fined without conviction for an offence of dishonesty. A first custodial sentence for a 19 year old young man will always require careful consideration. However, for these offences he could not be described as an immature teenager. He was young, but was sexually experienced and fully aware of the victim’s age and of the fact that he was performing unlawful acts.
He did suffer from a residual attention deficit hyperactivity disorder, but that had improved greatly with treatment over the years. However, Dr Walton did not consider that the conduct indicated any significant psychopathology. Dr Walton considered that it was “probable that [the appellant’s] excessive alcohol intake around the material times had a disinhibiting effect upon him in terms of breaching established social boundaries”. Any suggestion of impulsivity in the offending is negated by its prolonged nature and the fact that the appellant himself did not consider that the complainant was ready for penile vaginal sexual intercourse.
I do not consider that the sentencing Judge classified the appellant’s conduct as a breach of trust. That was the phrase used by the prosecutor in submissions before the sentencing Judge, qualified by “albeit a different kind of breach of trust”. The sentencing Judge did not adopt that expression. The aggravating features were summarised in the following passage of the Judge’s sentencing remarks:
Here, you were of a relatively young age, but your victim was very young, indeed. You, as I said, initiated contact and continued to abuse it in circumstances where you were a guest in the house, albeit that the conduct did not occur over a very long period of time.
I too would not classify the conduct as a breach of trust, such as a breach of the trust reposed in a carer of or someone in the position of power or influence over a young child. Whatever the prosecutor may have said, I do not believe that the sentencing Judge classified the conduct as a breach of trust in that sense when he spoke of the appellant continuing to abuse the contact in circumstances where he was a guest in the house.
It was an abuse of his position as a guest in the house, in taking advantage, for his own sexual gratification, of a very young and apparently willing but innocent young girl, and in circumstances where, for whatever reason, parental influence in the home seems to have been minimal.
This was not a situation of a much older man taking advantage of an immature teenager or the sort of case exemplified by R v D[1]. The sentence imposed by the Judge reflected that.
[1] (1997) 69 SASR 413
I find reliance on other cases of little assistance other than as a very broad general guide to the process of instinctive synthesis[2] in which a sentencing Judge must engage. There will always be features which render other cases different and, in most cases, the sentence is justifiable according to the particular circumstances of that case.
[2] R v Wong (2001) 207 CLR 584 at 611-612, [74-76]; See also Markarian v The Queen (2005) 79 ALJR 1048; [2005] HCA 25
What must be borne in mind in cases of this nature is what King CJ said in R v Williams[3]:
The law which prohibits sexual intercourse with young girls exists in order to protect young girls from their own inclinations, until they have reached a sufficient degree of maturity in life to make sensible and responsible decisions as to their own lives. It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advance of the sexual inclinations of young girls.
[3] (1990) 53 SASR 253 at 254. See also R v Halse (1997) 70 SASR 456 at 458; R v Temby [2003] SASC 230 at [19]
It follows that both personal and general deterrence weigh heavily in the sentencing process.
The other relevant factor which the sentencing Judge was required to take into account is the impact of the offending on the family. Notwithstanding the active co-operation of the complainant, the offences have in fact fractured what was a fragile family relationship which now clearly needs urgent counselling intervention.
In short, there were circumstances of aggravation which the sentencing Judge properly took into account. The appellant initiated the contact with a person whom he well knew was only aged 13 and with a person who was obviously infatuated on the first encounter. He took advantage of that and continued to abuse his privilege as a guest and to take advantage of the apparent lack of any parental discipline. He knew that what he was doing was unlawful.
The sentencing Judge had a discretion to suspend the sentence if he thought that good reason existed for doing so.[4] The only good reason for doing so was the appellant’s age and the fact that this was his first sentence of imprisonment. That is an important factor. The Judge had to balance that against the aggravating features that were identified. He did so. He allowed for the appellant’s age by fixing a shorter than usual non-parole period. Other judges might have structured the sentence differently and suspended it, but that does not demonstrate error. In my opinion, it has not been shown that the sentencing Judge erred in not suspending the sentence. I would dismiss the appeal.
[4] Section 38(1) Criminal Law (Sentencing) Act 1988

GRAY J:
This is an appeal against sentence.
On 21 March 2005 the appellant, Shane Petrovski, pleaded guilty to two counts of unlawful sexual intercourse and two counts of indecent assault. It was alleged that on 24 December 2004 and between 29 December 2004 and 14 January 2005 at Naracoorte, the appellant had sexual intercourse with and indecently assaulted T, a girl of the age of 13 years. The appellant was granted bail. On 7 July 2005 at Mount Gambier the appellant was sentenced to a head sentence of 15 months imprisonment with a non-parole period of six months to commence from the date of sentencing, 7 July 2005.
Circumstances of the Offending
The appellant’s offending involved the same victim, T, and occurred at her mother’s home at Naracoorte. At the time of the offending, T was 13 years and 9 months old. The appellant was 19 years of age.
During December 2004, the appellant and his cousin M would pass T’s home. In or about mid-December 2004, T’s sister, J, whistled at the young men as they walked past. Having attracted their attention, the young men were invited in.
On 23 December 2004 the appellant and M visited T’s home for the purposes of M visiting J. Celebration drinks for Christmas were consumed. The young men were invited to stay the night. The appellant and M were to sleep in the lounge together with another man Al. In the event, the appellant went to sleep on a “futon” bed in the lounge. M spent the night with J in her bedroom. Al did not sleep in the lounge room. The declarations do not disclose where he slept.
During the early hours of the morning of 24 December 2004, T went to the lounge where the appellant was sleeping to watch television. After a time the appellant entered into conversation with T. She turned off the light and the television and “got down onto the futon with [the appellant]”. They stayed on the futon until about 6.30am. An act of digital intercourse occurred. T described further contact as follows:
... then we got into the position for having sex with him on top of me. We just rubbed against each other for a while but we didn’t actually have sex.
The following day, the appellant and M travelled to Geelong for Christmas. Whilst the young men were in Geelong, T’s mother said that there was a family meeting:
as we always do to make decisions, and decided to let them stay at our house. They didn’t have anywhere else to live at that time. [J] passed that message onto [M] over the telephone while they were in Geelong.
The appellant and M returned to Naracoorte on 30 December 2004 to obtain employment. They stayed at T’s family home until 13 January 2005. According to the statement of T, no sexual contact occurred on the first few nights. During those nights the appellant slept on the futon bed in the lounge. Then the futon bed was left at night in T’s bedroom. T’s mother described the on-going sleeping arrangement as follows:
[The appellant] was supposed to sleep in the lounge room on the futon. That was the case for about a week before I noticed the futon was in [the victim’s] room on a permanent basis. It didn’t get moved back into the lounge room. [M] was supposed to sleep on the lounge in the lounge room as well. I’m not sure if that happened or not.
Thereafter sexual contact occurred between the appellant and T on a number of occasions. This contact included oral sexual intercourse and digital penetration. It was accepted that T was a willing participant in the sexual contact. In her statement taken by police on 15 February 2005, T recounted the incidents of sexual contact as follows:
We kept kissing for a while and then he started touching my breasts through my pyjamas. I didn’t do anything to stop him and then he put his hands up underneath my pyjamas and touched my bare breasts for a while.
After doing this for a while he moved his hands down and started touching my vagina. I didn’t try to stop him and so he touched me on the outside of the vagina for a while and then he put his finger inside my vagina and started moving it around. I was a bit scared but it was all new and so I let him keep doing this for a while, then we got into the position for having sex with him on top of me. We just rubbed against each other for a while but we didn’t actually have sex.
…
[The appellant] knew that I was only thirteen when we were doing this but we didn’t really talk about it, except that he said he wished I was older so that we wouldn’t have to hide it from everyone.
…
It was pretty much the same thing that happened on the first night but we just did some more different things. It usually started with kissing each other and then touching each other. He used to touch my breasts and then move down and put his fingers in me. Twice he did other things that he called ‘licking me out’. He used to kiss my vagina for a while and then put his tongue inside me.
He used to take my hand and put it on his penis and rub it up and down but then after a few times I did it myself because I knew that’s what he wanted. …
One time, I can’t remember what day it happened, he got me to suck his penis and he came in my mouth. He didn’t force me to do this, I just did it because I knew he wanted me to.
…
[The appellant] didn’t force me to do anything when we were together. He wasn’t violent towards me and didn’t threaten me in any way.
I know what we were doing was against the law because I’m only thirteen and [the appellant] knew that too, but all he ever said about it was that he wished I wasn’t so young that we had to hide what we were doing from everyone.

The appellant left T’s home after a period of about two weeks. In her statement, T’s mother explained that the appellant and M were asked to leave as a result of a relationship that had formed between M and J. T’s mother provided the following account:
The reason that I kicked them out was because [M] was in a relationship with [J]. That relationship had ended, and when [J] had another boy around [M] got angry when he saw [J] flirting with him. I heard [J] and [M] arguing and after [J] injured her hand by hitting a wall, I decided that it was time for both [M] and [the appellant] to leave the house. I had to tell them several times to leave before they did. I called an ambulance for [J’s] hand. They looked at her hand but left after saying it was alright.
T’s mother apparently was not concerned about the arrangement of the appellant and T sharing a bedroom.
T’s family subsequently learned of the relationship between T and the appellant and of the sexual contact that had occurred between them. T and her mother provided statements to the police. The appellant was spoken to by police but did not admit his offending. As earlier observed, the appellant later pleaded guilty to all charges.
Approach of the Sentencing Judge
When sentencing, the Judge imposed one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). A head sentence of 15 months imprisonment was imposed, after a reduction of five months was made on account of the appellant’s guilty pleas. A non-parole period of six months imprisonment was fixed. The Judge declined to suspend the sentence.
In the course of sentencing, the Judge considered the appellant’s personal circumstances. Regard was had to medical reports from a paediatrician and a psychiatrist tendered by counsel during sentencing submissions. The appellant’s history of depression and of an attention deficit disorder was noted.
Counsel for the appellant submitted to the sentencing Judge that, having regard to the personal circumstances of the appellant, any term of imprisonment imposed ought to be suspended. Counsel for the prosecution opposed any suspension, referring “to the breach of trust” by the appellant as a guest in the house of T’s family and to the disparity in the ages between T and the appellant. The sentencing Judge made the following remarks on the issue of suspension:
Your offending occurred in circumstances where it was the first time you had lived away from home and family support.
I accept that the victim was a willing participant in what happened, but it is also plain that you initiated the contact.
It was put on your behalf that you were of a relatively young age, immature, that you entered your plea at an early stage and that you are sorry for what occurred.
Your arrest led to the loss of your employment and you had to return to Geelong, where you cannot access work.
Your counsel asked that I consider suspension of any term of imprisonment.
There were tendered, on your behalf, two medical reports. One report was from a doctor to whom you were first referred in 1990 because of difficulties at school. He spoke of learning difficulties, impulsivity and your experimentation with drugs and alcohol. There was a diagnosis of attention deficit disorder.
Your parents separated just after you left school and your father suffers from a mental illness. Since their separation, you have had recurring bouts of depression and it is apparent that you have continued a longstanding habit of cannabis use.
Dr Walton considers you that you [sic] do not suffer from any psychotic symptoms, but it appears that your offending was brought about by a combination of alcohol abuse and impulsive behaviour, the latter resulting from your attention deficit disorder.
Your psychiatrist expresses misgivings about the impact of any imprisonment.
For its part, the prosecution has opposed any suspension and has referred me to a number of cases which speak of sentencing for offending of this kind. It referred to the breach of trust inherent in your being a guest in the house at the time, to the disparity in the ages between you and the victim, and to her young age in particular.
It also referred to the need for general deterrence and the cases of R v Williams (1990) 53 SASR 253, R v Halse (1997) 70 SASR 456, R v Temby [2003] SASC 230 and Ahlburg v R (SA CCA, Judgment No. S4628, 21/6/94). Temby and Williams, in particular, speak of the purpose of the law and the need for general deterrence of this sort of conduct.
Notwithstanding those cases, each matter falls to be determined on its own merits.
Here, you were of a relatively young age, but your victim was very young, indeed. You, as I said, initiated contact and continued to abuse it in circumstances where you were a guest in the house, albeit that the conduct did not occur over a very long period of time.
But for your plea of guilty, I would have sentenced you to 20 months imprisonment, but on account of your plea, that sentence is reduced to 15 months.
I am not prepared to suspend your sentence because of the aggravating features I have mentioned. I am persuaded, however, that the circumstances call for a shorter than usual non-parole period, and in your instance that period will be one of six months. The sentence and the non-parole period will commence from today.
Grounds of Appeal
Counsel for the appellant appeals the sentence imposed on the ground that it was manifestly excessive in that the sentencing judge failed to exercise his discretion to suspend the sentence of imprisonment. In particular, it was said that the sentencing judge erred in failing to have sufficient regard to: the short period of time over which the offending occurred; the comparative ages of T and the appellant; the contents of the psychiatric assessment by Dr Walton and the medical report of Dr McKeller; and the antecedents of the appellant and his prior good character.
Counsel for the appellant submitted that the appellant’s youth was a relevant factor in sentencing. It was contended that although the law prohibiting unlawful sexual intercourse is a means of protecting young persons from sexual predators, it also has the function of protecting teenagers from themselves. Counsel submitted that the appellant was not a sexual predator, but rather an immature teenager engaging in sexual acts with another teenager who willingly participated in that conduct.
Abuse of Trust
The sentencing Judge was not prepared to suspend the sentence of imprisonment because of what he described as “the aggravating features that I have mentioned”. These apparently included what the Judge earlier referred to as the Crown submission of “the breach of trust inherent in your being a guest in the house at the time”. Later he referred to “abuse in circumstances where you were a guest in the house”.
Although the circumstances under which the appellant came to be at T’s home form part of the circumstances surrounding the offending conduct, they did not give rise to a breach of trust so as to amount to an aggravating factor. It has long been recognised that breaches of trust amounting to a circumstance of aggravation may arise in cases of sexual offending. Examples are the relationship of father, stepfather or person in loco parenti between the offender and the victim. Other relationships giving rise to an abuse of trust are those of school bus driver and passenger, taxi driver and passenger, schoolteacher and pupil, religious teacher and pupil and police officer and victim. In the present case, no such relationship existed between the appellant and T. True it is, that common decency called on the appellant to respect the hospitality offered to him. However, the appellant’s lack of respect did not give rise to an abuse of trust.
As earlier set out, the circumstances of the 24 December 2004 offending arose after T entered the room in which the appellant was to stay and the offending in January 2005 occurred only after the appellant’s bed had been moved into T’s room with the knowledge and apparent acquiescence of T’s mother. As she said, she observed that to be the permanent arrangement. There is no material before the court suggesting T’s mother disapproved of this arrangement.
The sentencing Judge was in error to treat the conduct of the appellant as a breach or abuse of trust amounting to a matter of aggravation. The Judge was in error to consider that abuse as a reason for not suspending the sentence.
Personal Circumstances of the Appellant
As earlier observed, at the time of the offending the appellant was 19 years of age. The appellant was educated at Geelong to the end of year 10 and continued further part-time education while working. He has been employed in the hospitality industry as well as undertaking “recurring stints” as a sandblaster and in an abattoir.
The appellant has had a number of girlfriends, the longest relationship lasting a year. He has not been involved in any previous inappropriate-age liaisons. The appellant has no history of sexual offending.
The appellant’s parents separated in 2001. It was said that the relationship failed on account of the appellant’s father’s mental illness. The appellant’s father suffers from schizophrenia, bipolar disorder and an attention deficit hyperactivity disorder. He has been hospitalised on numerous occasions and remains under the care of a psychiatrist.
The appellant had one prior court appearance in Victoria. On 28 June 2004 he was fined $250 for handling or receiving stolen goods and using an unregistered motor vehicle. No conviction was recorded.
Counsel for the appellant submitted that the personal circumstances of the appellant were such that they warranted suspension of any term of imprisonment imposed. It was said that the appellant was not a mature 19-year-old man and had a family history suggesting a predisposition to psychological problems. The appellant has been diagnosed with depression and attention deficit disorder. In a report dated 28 July 2005 Dr Walton noted:
In July 1990 [the appellant] was referred to Dr B McKellar, a paediatrician, and he was diagnosed as suffering from attention deficit hyperactivity disorder. [The appellant] was prescribed the stimulant medication, Ritalin, according to Dr McKellar “with dramatic improvement in all areas”. As best he could recall, [the appellant] received this treatment until he was 16 years old when he left school.
[The appellant] stated that between the ages of 17 and 19 years old there were multiple occasions of self-inflicted wounding, only some of which were determinedly suicidal.
He stated that he had been prone to recurring depression since the parents’ marriage failed, related to his struggles to find work, that he did not cope at all well with the death of both his grandparents and he was missing contact with his older brother since he moved out of the family home.
[The appellant] has been seen by a private psychiatrist in the past and also at the Barwon Psychiatric Service, although he describes being dismissed after one consultation.
…
[The appellant] stated that he is no longer drinking to excess but he does resort to two cans of bourbon mix nightly “to get to sleep but it doesn’t work”.
Dr Walton arrived at the following opinion regarding the appellant’s mental health:
At a minimum, [the appellant] remains in the residual phase of attention deficit hyperactivity disorder. What he describes in terms of hallucinatory voices would be properly classified as so-called pseudo-hallucinations at this point, a reflection of anxiety rather than psychotic disturbance, but it is at least possible that [the appellant] is in the prodromal phase of schizophrenia, especially given the family history and he is now of an age when that illness commonly emerges.
…
Even if [the appellant] currently is in the nascent stage of a serious psychiatric illness such as schizophrenia, as best I can determine, that condition was not present at the time of his alleged offending. While it is not a matter of psychiatric expertise as such, it is probable that [the appellant’s] excessive alcohol intake around the material times had a disinhibiting effect upon him in terms of breaching established social boundaries.
[The appellant] freely admits that he was involved in sexual contact with the alleged victim, which would appear to have occurred by mutual consent. From a psychiatric perspective, that a 13-year-old and a 19-year-old may engage in sexual activity together certainly does not automatically indicate any significant psychopathology. This man’s sexual offending, in my view, falls at the lower end of the spectrum and the probability is that it would not have been reported unless detected by the mother. The alleged “victim” makes no meaningful complaint as such. Nevertheless, [the appellant] does acknowledge that he has been involved in wrongdoing.
It is probable that this man’s attention deficit hyperactivity disorder has made some contribution to his misconduct, it being well recognised that impulsive and ill-considered behaviour is associated with that condition. That certainly does not reach the proportions of a viable mental state defence.
When asked by Dr Walton why he engaged in the sexual conduct the subject of the present charges, the appellant responded:
“I liked her. I wasn’t in love but I was sexually attracted.” He can recall that he was feeling rather lonely at the time and he was given to regular bouts of intoxication with bourbon, which likely disinhibited him. The alleged victim was at least physically sexually mature and keen to participate in the sexual activity. [The appellant] stated “She was more mature than her mother”, apparently that woman being an alcoholic and essentially her daughters ran the household.
Suspension of the Sentence
The personal circumstances and medical history of the appellant provided good reason to suspend the sentence of imprisonment. He had a recognisable mental condition known as an attention deficit hyperactivity disorder. The result is immaturity and impulsiveness. He was not a mature, confident 19-year-old. He was away from home, in unaccustomed surroundings.
Counsel contended that the appellant, although older in years, was not substantially more mature than T. It was emphasised that the victim was a willing participant in the sexual conduct. In addition, it was said that the offending occurred over a short period of time, the appellant pleaded guilty and had no relevant criminal antecedents. Counsel for the appellant distinguished the present case from that of R v D,[5] submitting that the appellant’s conduct was not predatory and did not constitute an older offender deliberately taking advantage of a young victim. It was said that in the present case questions of general and personal deterrence were of less significance. Counsel for the appellant submitted that the appellant was attempting to address his psychological problems by treatment.
[5] R v D (1997) 69 SASR 413.
Counsel for the appellant emphasised the importance of the comparative ages of the victim and the appellant when imposing a penalty for unlawful sexual intercourse. It was contended that the difference in age between T and the appellant, being just over five years, warranted a suspension of the sentence of imprisonment imposed.
Counsel referred to a number of cases where the court has declined to suspend a term of imprisonment when a greater disparity in age between assailant and victim has existed than that in the present case. Discussion of relevant case law must be considered in light of King CJ’s comments in Hunter:[6]
It is necessary to stress, once again, that each case depends upon its own facts and that, whilst statistics can be looked at in order to ascertain the tariff operating in the courts for certain types of offences and may be a useful guide in some cases, it is a mistake to attempt to compare one case with another on the facts for the purpose of determining an appropriate sentence. The sentence which might be regarded as excessive on the facts of one case will not be so on the facts of another case.
[6] R v Hunter (SA CAA, Judgment No. S4231, 20/10/1993).
Although each case must turn on its specific facts, particularly where the offending conduct involves personal relationships and varying levels of individual maturity, previous decisions provide some indication of the scope of the penalty to be imposed for offending of this nature.
In Halse[7] the defendant was 37 years of age and the complainant 15 years and 3 months. The defendant pleaded guilty to one count of unlawful sexual intercourse. The offence occurred whilst the defendant was on parole. The defendant had a significant history of offending, including sexual offending. On appeal, the Court found that an appropriate starting point was 18 months imprisonment. In Halse, the Court declined to suspend the term of imprisonment.
[7] R v Halse (1997) 70 SASR 456.
In Sherratt,[8] the Court of Criminal Appeal dismissed an appeal against a head sentence of three years imprisonment with a non-parole period of 18 months for two counts of unlawful sexual intercourse and two counts of indecent assault. The sentence was not suspended. The defendant was 35 years old and the complainant 14. The complainant’s sister was in a de facto relationship with the defendant. King CJ, with whom Mohr and Bollen JJ agreed, observed:[9]
The sentence imposed upon the appellant was undoubtedly a severe sentence. There are, however, quite serious aspects of the case. The girl was quite young, only 14 years of age, and there can be no doubt that she has suffered some adverse effects as a result of the conduct and no doubt also of the family tensions which resulted from its disclosure. There was, of course, a very considerable disparity in the ages of the appellant and the victim, he being 35 years of age and she only 14. There was also the serious aspect that this young girl was able to visit the appellant’s house, and no doubt was permitted to do so by her parents, precisely because he was living in a settled domestic relationship with the victim’s half sister. That put him in a position of some responsibility towards this young girl who was visiting the establishment. I have no doubt that she indicated a sexual interest in him initially. In that situation, it was plainly his responsibility to discourage her and to ensure that no sexual conduct took place, and to assume some responsibility for her by perhaps alerting her half sister to what was occurring. Instead of that, he took no action to discourage her, but on the contrary, used her sexual interest to gratify his own sexual appetite.
…
I think that those serious aspects of the case make it impossible for this court to say that the sentence imposed was manifestly excessive. It was a severe sentence, but as I have said, there were serious aspects of the case which warranted a sentence which reflected the seriousness of the conduct.
[8] R v Sherratt (1993) 171 LSJS 482.
[9] R v Sherratt (1993) 171 LSJS 482 at 482.
In TG[10] the Court of Criminal Appeal upheld a sentence of four years imprisonment with a non-parole period of one year imposed for offending involving a 47-year-old defendant and a 15-year-old complainant. Debelle J, with whom Besanko and White JJ agreed, declined to suspend the sentence for the following reasons:[11]
[10] R v TG [2005] SASC 58.
[11] R v TG [2005] SASC 58 at [21]-[27] (footnotes omitted).
On the appeal, it was argued that the sentencing Judge had, in error, considered that decisions of this Court precluded, in the circumstances of this case, the exercise of the discretion pursuant to s 38(1) to suspend a sentence and further that the sentencing Judge was, in any event, in error in not suspending the sentence.
The decision whether or not to suspend a sentence involves an exercise of a discretion. Where the discretion has been exercised, this Court would interfere with that exercise only if satisfied that the sentencing Judge has made some error of principle or has failed to have regard to some relevant factor, or has had regard to an irrelevant factor or where it can be said that despite lack of identification of a precise error the sentencing discretion has miscarried: House v R (1936) 55 CLR 499. However, that applies only if the discretion has been exercised. In the present case, the first complaint of the appellant is that the sentencing Judge wrongly considered that, by virtue of decisions of this Court, there was no scope for the exercise of the discretion in favour of the appellant.
It is clear enough that the discretion vested in a Judge by s 38(1) must be exercised according to the merits of a particular case. The discretion is not to be exercised inflexibly and without regard to the merits of the particular case. The exercise of the discretion in accordance with guidelines or so as to achieve consistency with the exercise in other cases is not precluded, provided always that the Judge has regard to the particular circumstances of each case.
None of the four decisions of this Court to which the sentencing Judge referred are authorities for the proposition that suspension of a sentence of imprisonment imposed in respect of multiple offences of indecent assault or unlawful sexual intercourse would never be appropriate. In the case of R v D^., and R v Liddy (No 2), the question of possible suspension of the sentence of imprisonment was not discussed at all. In R v P, this Court dismissed an appeal against a refusal to suspend a sentence of imprisonment imposed on a 45 year old offender in respect of four counts of unlawful sexual intercourse and two counts of indecent assault committed on his daughters, then aged between eight and 12 years. The offences were representative of numerous assaults which occurred several times per week over a period of about two years. It appears that the sentencing Judge may have been particularly influenced by the judgment of Mullighan J in R v P. Having said that he would dismiss the appeal against the sentence of nine years imprisonment with a non-parole period of three years and six months imposed in that case, Mullighan J said:
I have given anxious consideration to suspending the sentence, but I regard the crimes as too serious and having been committed over too long a period to suspend the sentence.
The similarity of that paragraph with the reason given by the sentencing Judge for refusing to suspend the sentence in this case is to be noted.
In Taylor v Police [2004] SASC 198, I allowed an appeal from a decision of a Magistrate refusing to suspend a sentence of imprisonment of three months imposed for a single offence of indecent assault committed some 21 years before the offender was sentenced.
In many cases, including R v D, the seriousness of offences of this type and the need for personal and general deterrence have been emphasised. Those considerations in many cases have caused Judges to hold that suspension of sentences of imprisonment for offences of the present kind is inappropriate. However, there are other cases in which sentences of imprisonment have been suspended, or at least, the suspension of the sentence imposed at first instance has not been disturbed on appeal.
In my opinion, there is no basis for thinking that decisions of this Court preclude altogether the suspension of a sentence of imprisonment imposed for an offence of the present type. It is not to be supposed that the sentencing Judge in this case held any other view.

Counsel for the appellant submitted that suspension of terms of imprisonment has occurred in cases involving significantly greater disparity of age than that between the appellant and the victim in this case.
For example, in Hunter, the defendant was 20 years of age and the complainant 13 years and seven months. The defendant pleaded guilty to unlawful sexual intercourse. The sentencing Judge had regard to the defendant’s youth and immaturity and imposed a head sentence of three years with a non-parole period of two years. The sentence of imprisonment was suspended. This sentence was affirmed on appeal. In his ex tempore remarks King CJ, with whom Millhouse and Debelle JJ agreed, observed:
The serious aspect of the present crime is the age of the girl. She was only 13 years and 7 months and very much younger and less mature than the appellant who was 20 years of age. She was a virgin at the time of the commission of the offence, and intact, sustained some vaginal injury in consequence of the act of intercourse.
The sentence of three years imprisonment, with a non parole period of two years, is undoubtedly a severe sentence for this crime and probably can be regarded as a top of the range of sentences which were available to the learned sentencing judge in the circumstances of the case. Nevertheless, in this type of offence, as in all types of offences, the sentencing judge has a wide sentencing discretion and it will be interfered [sic] by the appellant [sic] court only where there has been some demonstrable error or where the sentence is so excessive that there must exist an undisclosed error. I do not regard the sentence of three years, with a two year non parole period, as being in that category in the present circumstances. As I say, the sentence is high and it is probably at the top of the range, but when one looks at the overall sentencing package, including the suspension of that sentence, I do not think that it can be said that the sentence is manifestly excessive.
In Oberthur[12] the defendant was 19 years of age and the complainant 14. The defendant pleaded guilty to one count of unlawful sexual intercourse. The sexual contact involved digital penetration. The defendant had a history of prior offending, but none of a sexual nature. A sentence of 21 months imprisonment with a non-parole period of 11 months was imposed. The sentence was suspended. On appeal the penalty was reduced to 15 months imprisonment with a non-parole period of eight months. The suspension remained in force. Prior J, with whom Lander and Wicks JJ agreed, observed:[13]
It must never be forgotten that it is notoriously unsafe to attempt to compare one case with another and to draw comparisons. Nonetheless, against some of the observations made of unlawful sexual intercourse in Halse, I think the appellant has made good the argument that the head sentence is inappropriate. To start with a sentence of two years before taking account of the plea of guilty was, in all the circumstances of this case, too high. Of particular significance here is the age of the offender and the victim, the factual circumstances of the offence and the appellant’s particular circumstances. That is not to say this case alone, or in conjunction with the decision in Halse, establishes any sort of tariff for the offence of unlawful sexual intercourse.
[12] R v Oberthur [1998] SASC 6881.
[13] R v Oberthur [1998] SASC 6881 at [10].
In Temby[14] the Court of Criminal Appeal allowed an appeal against a sentence imposed for two counts of unlawful sexual intercourse and two counts of common assault. The defendant was aged 22 years and the complainant was 15. The defendant pleaded guilty. The offending occurred in the context of an ongoing sexual relationship between the defendant and the complainant during a period of around eight months. The complainant’s mother had approved of the relationship. At the time of the appeal, the defendant had spent some 17 weeks in custody. The Court of Criminal Appeal imposed a sentence of imprisonment of six months and ordered the defendant to be released immediately. The term of imprisonment was suspended. In the course of his ex tempore reasons Debelle J, with whom the other members of the Court agreed, observed:[15]
[14] R v Temby [2003] SASC 230.
[15] R v Temby [2003] SASC 230 at [19], [21] – [23].
The purpose of the law prohibiting unlawful sexual intercourse is the protection of young women from the advances of men, older men in particular, and to protect them from their own immature inclinations. It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advantage of the sexual inclinations of young girls. See R v Williams (1990) 53 SASR 253 at 254 and R v Halse (1997) 70 SASR 456 at 458. When that purpose is identified, it is quite apparent that the offending in this case stands outside the normal course. Although the appellant was some six or seven years older than the complainant he had not simply taken advantage of her. He and the complainant had discussed the question whether they should engage in sexual intercourse with the complainant's mother and obtained her consent. This was not an occasion of a single act of intercourse perhaps following an episode of drinking, nor was it a breach of trust. It was not the case of an older man simply taking advantage of a younger woman. While the complainant's mother may be open to criticism for granting her consent, any fault on her part should not be visited upon the appellant.
…
This conduct is so far removed from the usual kind of offending that questions of general and personal deterrence do not have the significance they might otherwise have. In this respect it is convenient to refer to the observations of Perry J in G v Police (1999) 74 SASR 165 at 170 where His Honour said:
"General deterrence must, of course, always play its part. But there will be cases where the question of deterrence will yield to personal factors or other matters which might amount to a good reason to suspend."
In my view, the head sentence for the crimes of unlawful sexual intercourse was manifestly excessive. It fails to have regard to the particular circumstances of this case. Before dealing with the question of the appropriate penalty, I turn to the assaults and to the question of suspension.
So far as the two assaults are concerned, the appellant's conduct was plainly reprehensible but it was not so serious as to warrant a sentence of imprisonment, even for the second assault. The complainant suffered no physical injury other than perhaps some minor bruising. In other circumstances a fine or some other penalty short of imprisonment would have sufficed.
Turning to the question of whether the penalty to be imposed ought to be suspended, Debelle J observed:[16]
A suspended sentence is a very real form of punishment. In this respect it is sufficient to refer to the well-known remarks of Bray CJ in Elliot v Harris(No 2) (1976) 13 SASR 516 at 527. It is unnecessary to repeat them. They are well-established and have been consistently applied by this Court ever since.
The circumstances in which a suspended sentence will be ordered were noted by Walters J in Wood v Samuels (1974) 8 SASR 465 at 468.
"Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court's clemency.
Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided."
In my view, the sentencing judge failed to have due regard to the unusual circumstances of this case when considering whether to suspend the sentence. He failed to have regard to the fact that the young man before him was a person of whom it could be said that he was unlikely to offend again. In addition, he gave undue emphasis to the question of deterrence, at the expense of rehabilitation. In my view, he has also failed to have regard to the rationale underlying a suspended sentence. The nature of this offending, coupled with the good character of the accused, pointed to the conclusion that the sentence should have been suspended.
[16] R v Temby [2003] SASC 230 at [24] – [26].
Despite the numerous cases referred to by counsel for the appellant where a term of imprisonment has been suspended in relation to a charge of unlawful sexual intercourse, there exist many cases illustrative of the contrary position. For example, in Ahlburg,[17] an unsuspended sentence of three years imprisonment with a non-parole period of two years was affirmed on appeal. The defendant in Ahlburg was aged 20 years and 9 months and the two complainants were aged 15 and 16. The defendant pleaded guilty to two counts of unlawful sexual intercourse with each complainant. The complainants were intoxicated at the time of the offending. The defendant had minor criminal antecedents.
[17] R v Ahlburg (SA CCA, Judgment No. S4628, 21/6/94).
As observed by the Court in Coombe v Douris,[18] Eldridge v Bates,[19] Humby[20] and Poiton v Police,[21] section 38 of the Criminal Law (Sentencing) Act allows the court, if it thinks that good reason exists for doing so, to suspend a sentence of imprisonment on the condition that the defendant enter into a bond to be of good behaviour and any other conditions prescribed by the court. There are no set criteria for determining whether “good reason” exists in favour of suspending a sentence. The circumstances of each case must be taken into account.
[18] Coombe v Douris (1987) 47 SASR 324.
[19] Eldridge v Bates (1989) 51 SASR 532.
[20] R v Humby [2004] SASC 358.
[21] Pointon v Police [2004] SASC 4.
In the present case, the sentencing judge did not have adequate regard to the appellant’s mental health problems. In addition, the appellant’s youth, his relative immaturity and the comparative age difference between the appellant and T, gave rise to a need to consider the suspension of any custodial sentence imposed.
The sentence imposed by the sentencing judge should be set aside. It is appropriate for this Court to re-sentence the appellant.
Re-Sentence
Counsel for the appellant submitted that the present case could be distinguished from those cases of unlawful sexual intercourse involving marked disparity in age between victim and assailant and predatory behaviour. It was said that the present circumstances concerned an immature 19-year-old man involved in sexual conduct with a 13-year-old victim who was a willing participant in the conduct.
Any incident of unlawful sexual intercourse must be considered a serious offence. The criminalisation of such conduct is intended to protect young people and children from unlawful sexual conduct, predatory or otherwise. Predatory behaviour necessarily aggravates the level of criminal culpability involved. Many cases of unlawful sexual intercourse involve the exercise of significant emotional and sexual dominance over young people.
In the present case, whilst T can be described as a willing participant, it was the appellant who initiated the sexual conduct. The appellant knew of T’s age. He was a visitor to T’s family home. He performed sexual acts upon T and encouraged her, whether explicitly or implicitly, to perform sexual acts upon him. While his behaviour may not be characterised as predatory, the appellant was in a position of emotional and physical dominance.
The impact of the appellant’s conduct has been felt by both T and her family. It has affected T’s relationship with her mother. In her statement to police, T reports that the appellant did not force her into any sexual conduct. However it is apparent from her victim impact statement that she has been adversely affected by the experience. The seriousness of the offence gives rise to a need for a custodial sentence to be imposed.
The appellant’s personal circumstances are material matters to consider when sentencing. In particular, the appellant’s family and personal history of mental illness supports the suggestion that his maturity level may be significantly less than an average 19-year-old man.
The appellant’s prior good character and youth suggest that he is a good candidate for rehabilitation. His mental health problems, in particular his depression and attention deficit disorder, appear likely to respond positively to further psychological and psychiatric treatment.
In the circumstances of this case, having regard to the youth of the appellant, his immaturity, the fact of his attention deficit disorder, and his prior good record, his good prospects for rehabilitation and the time spent in custody, it is appropriate to suspend the term of imprisonment imposed by the sentencing Judge on the condition that the appellant enter into a bond to be of good behaviour for a period of two years. He should be supervised by a correctional services officer and should undertake such medical and other treatment as may be directed by that officer.
For these reasons, I would allow this appeal and order that the sentence of imprisonment imposed by the sentencing Judge be suspended.