R v R, AW

[2012] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v R, A W

[2012] SASCFC 78

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice Peek)

26 June 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - CONTRITION

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - DELAY BETWEEN OFFENCE AND SENTENCE

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION

Prosecution applied for permission to appeal against sentence – respondent pleaded guilty to a charge of persistent sexual exploitation of his daughter between 1993 to 1996 – complaint originally made by victim in 2003 when she was 14 years nine months old – FAYS and SAPOL decided not to prosecute respondent on the basis that he leave home and undertake treatment at SOTAP - Respondent did so and returned home with consent of wife after 14 months - in 2010 respondent and wife separated –  victim reopened her complaint – respondent charged and pleaded guilty - sentenced in 2012 to six years imprisonment  with a one year non-parole period on the basis of an early guilty plea, contrition, and established rehabilitation associated with substantial delay in unusual circumstances.

Whether permission to appeal should be granted - whether the sentence was manifestly inadequate and in particular whether the non-parole period was erroneously low - principles relating to prosecution appeals and policy for sentencing sexual offenders considered – relevant factors for setting head sentence and non-parole period – predictive rehabilitation distinguished from established rehabilitation – consideration of changes to the parole system and their effect - discretionary and non-discretionary release on parole.

Held: (Peek J, Nyland J concurring):

Permission to appeal refused. It is not a matter of comparing the non-parole period with the head sentence or with the nature of the offences and acting on a ratio of head sentence to non-parole period asserted to be unusually large - each case must be assessed individually. The head sentence and non-parole period were within the ambit of the Judge’s discretion – the substantial delay associated with the actions of Governmental agencies and the respondent’s positive rehabilitation supported a merciful non-parole period.

Held (Vanstone J, in dissent):

Permission to appeal should be granted and appeal allowed – the non-parole period fails to acknowledge relevant legislative imperatives, tends to erode standards of punishment and is inadequate as a reflection of the punitive, deterrent and preventive purposes of punishment. On re-sentencing: a six year head sentence and a three year and six month non-parole period should be imposed. 

Criminal Law (Consolidation) Act 1935 (SA) ss 50(1), 352(1)(a)(iii); Criminal Law (Sentencing) Act 1988 (SA) ss 10, 10(1)(c), 10(1)(ec), 10(4), 29(D); Correctional Services Act 1982 (SA) ss 66(1), 66(2)(a), referred to.
R v Marikar [2010] SASCFC 36; R v Marien [2011] SASCFC 116; R v Pickard [2011] SASCFC 134; Lowe v The Queen (1984) 154 CLR 606, applied.
R v Creed (1985) 37 SASR 566; Bugmy v The Queen (1990) 169 CLR 525; R v Miller (1999-2000) 76 SASR 151; The Queen v D (1997) 69 SASR 413; R v Sioziz (2004) 236 LSJS 88; R v Payne (2004) 89 SASR 49; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; R v Moyle (1996) 186 LSJS 462; Dinsdale v The Queen (2000) 202 CLR 321; R v Saunders (2011) 210 A Crim R 1; Osenkowski v The Queen (1982) 30 SASR 212-213; R v Collyer (1985) 126 LSJS 111, discussed.
R v Harkin (2011) 109 SASR 334; House v The King (1936) 55 CLR 499; Champion v Champion (1971) 1 SASR 594; R v Abdulla (2011) 109 SASR 258; Markarian v The Queen (2005) 228 CLR 357; R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; R v Leggett [2000] WASCA 327; Thorn v Western Australia [2008] WASCA 36; R v Lekaj (1997) 92 A Crim R 325; R v Todd [1982] 2 NSWLR 517; R v Suckling (1983) 33 SASR 133; Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454; Duncan v The Queen (1983) 9 A Crim R 354; R v Micelli [1998] 4 VR 588; R v Liddy (No 2) (2002) 84 SASR 231; R v P (2003) 87 SASR 287; R v Kane [1974] VR 759; R v Winchester (1992) 58 A Crim R 345; R v Liang & Li (1995) 82 A Crim R 39; R v Garrett [2005] SASC 58; R v Temby [2003] SASC  230; Police v Hunt  (Doyle CJ, 14 April 1997, Jdgt S6123, Unreported); R v Oberthur (Full Court, 25 September 1988, Jdgt S6881, Unreported); R v MMK (2006) 164 A Crim R 481; R v Tio and Lee (1984) 35 SASR 146; R v Stewart (1984) 35 SASR 477, considered.

R v R, A W
[2012] SASCFC 78

Court of Criminal Appeal:  Nyland, Vanstone and Peek JJ

1. NYLAND J.          The conduct of the respondent which gave rise to the charge against him was clearly very serious and warranted a severe penalty.  However, there are some unusual aspects about this case concerning delay, combined with positive steps taken by the respondent to effect his rehabilitation, which are set out in some detail in the judgment of Peek J.  In my opinion, those matters support the merciful approach to the non-parole period taken by the sentencing Judge.  I would therefore refuse permission to appeal for the reasons expressed by Peek J.

2. VANSTONE J.     The Director of Public Prosecutions applies for permission to appeal against a sentence imposed in the District Court after a plea of guilty for persistent sexual exploitation of a child.  The sexual abuse was upon the respondent’s daughter and continued during the period when she was aged from about five to about eight years.  A complaint to a school counsellor in 2003 led to the respondent acknowledging his behaviour and attending a treatment course designed to overcome his tendencies.  Although police were involved at that stage the victim indicated that she did not wish to pursue the matter.  The abuse was again reported to police after the victim’s parents separated and that led to a prosecution in the District Court.  The respondent was sentenced to six years imprisonment with a non-parole period of 12 months.

3. The Director of Public Prosecutions accepts that the six year head sentence was within the available range – although right at the lower end of it – but argues that the non-parole period was erroneously low and such as to erode the standards of punishment appropriate for such offending and to shock the public conscience.

   Background

4. The respondent pleaded guilty to the charge on the basis that a course of conduct continued over about a three year period when the victim was aged between five and eight years and that, although the number of occasions of assault could not be established, digital penetration and cunnilingus each occurred in the order of half a dozen times and that the victim also performed fellatio on the respondent.  Further less invasive acts were also particularised in the information.

5. As mentioned, the respondent’s conduct first came to light in mid 2003 when the victim complained to a counsellor, who reported the matter to the police.  The police investigation did not proceed to charges, since the victim, then 14 or 15 years of age, signed a statement to the effect that she wished no further action to be taken on the complaint.  Apparently it was resolved that the respondent would attend a course called the Sexual Offenders Treatment and Assessment Program (SOTAP).  A report from Dr Louis furnished to the Court in November 2011 related that the course had been satisfactorily completed.  Dr Louis said that in 2004 the respondent had reported that he was abiding by the conditions of an agreement he had entered into as part of the program and was ensuring that he was not alone with any child either while at home or elsewhere.  He was also receiving guidance from his pastor, and the respondent and his wife were receiving counselling in relation to their marriage from that pastor.  Dr Louis related that the last contact with the respondent was by telephone in November 2005 when the respondent said he was doing well.

6. In May 2010 the respondent and his wife separated and it was only about three months later that the victim went to the police and made a complaint.  By this time she was 22 years of age.  Her statement recorded a progression of sexual abuse from the time she was about five, occurring on numerous occasions and progressing to penetrative offences.  The offences would occur in the respondent’s or victim’s bedroom and in the bathroom, where they would often shower or bathe together.

7. The victim’s statement also alleged that the respondent had interfered with her younger sister – an allegation the truth of which was apparently acknowledged by the respondent to Dr Louis – but the judge was told that no charge had been laid and it should be disregarded.  Apparently the sister had an intellectual disability.

8. Apart from the report of Dr Louis, the judge also had before him a report of Mr Fugler, a forensic psychologist, who interviewed the respondent in October 2011.  He reported that the respondent appeared to have successfully completed the SOTAP program and to have effectively applied ‘relapse prevention measures’.  Mr Fugler observed that if the respondent’s report to him was accurate he should not require further intervention.  He reported that the respondent was contrite in relation to the sexual abuse of his daughter and understood the impact it had had upon her.

9. The judge was provided with a victim impact statement from the victim.  She described a troubled adolescence due to the abuse and the difficulties that the first report to police occasioned for her, she fearing the reactions of both her parents were it to lead to their separation.  She described ongoing anxiety and the difficulty she has, on a continuing basis, with physical intimacy.  She said: “Nothing can repair what [the respondent] has done to me.”  The victim impact statement of the victim’s mother raised squarely the issue of whether the SOTAP intervention was successful.  Unfortunately this question was not pursued in submissions.  Inasmuch as the completion of the SOTAP course was a central plank in the plea for leniency on behalf of the respondent, this should, in my view, have been explored.  In any event it was not and the judge was apparently prepared to accept that the treatment program was successful.  I too, proceed on that basis.

10. In sentencing, the judge recorded that the respondent had no relevant prior offending and was contrite.  He noted that the respondent had arranged counselling sessions for the victim to help her in coming to terms with the abuse.  The judge expressed the view that the respondent would not offend again and said that for this reason he did not consider that personal deterrence had to be reflected in the sentence.  He noted the primary policy of the law to protect young children and said that the sentence had to reflect the community’s outrage at this type of offending.  He noted the ongoing ill effects upon the victim.

11. The judge said that but for the plea of guilty, the rehabilitation of the respondent and his contrition, the sentence would have been one of nine years imprisonment.  In fact a term of six years was imposed.  The judge said he was prepared to fix a lower than usual non-parole period in all the circumstances and fixed a period of 12 months.

    The appeal

12. As mentioned, it is accepted by the Director of Public Prosecutions that the head sentence was within the range available, although right at the lower end of the range. The purpose of the Director’s application is to have this Court set aside the non-parole period, which is said to be manifestly inadequate. The argument is, in essence, that the non-parole period fails to reflect the requirements of s 10(4) and s 29D of the Criminal Law (Sentencing) Act 1988 which include that paramount consideration is to be given to deterrence and that the sentence fails to mark the community’s condemnation of such offending.  Indeed it is argued that, on its face, the sentence demonstrates error; that the starting point and head sentence as compared with the non-parole period show an inherent inconsistency.

13. It is accepted that appeals by the Director should be rare and should be instituted only for the purposes of serving their limited legitimate purposes.

    Analysis

14. In my view this is a case where the Director’s application for permission to appeal should be granted and where the appeal should be allowed.  I consider that the sentence in this case is flawed to the extent that the non-parole period fails to acknowledge relevant legislative imperatives, tends to erode standards of punishment and is inadequate as a reflection of the punitive, deterrent and preventive purposes of punishment.

15. As the High Court said in R v Shrestha (1991) 173 CLR 48 at 68-69, all considerations relevant to the sentencing process are relevant both to the head sentence and the non-parole period. As King CJ said in R v Creed (1985) 37 SASR 566, the non-parole period as much as the head sentence “must reflect the basic consideration of justice that the punishment should fit the crime”. The non‑parole period set here had to reflect the fact that this offending constituted a gross breach of trust, continued over three years, and was predatory and premeditated. The non-parole period had to be properly proportionate to the gravity of the crime. The non-parole period set here is not. In my view a crime so serious as to give rise to a sentence of nine years – even if deductions fell to be made from that figure – could not in point of principle lead to a non-parole period of as little as one year.

16. I do not say that the apparent rehabilitation should not have been reflected, in some measure, in the sentence, any more than I would say that the passage of seven years since the first report of the matter should have been disregarded.  Those were factors relevant to the fixation of both head sentence and non-parole period.  However, even acknowledging the judge’s express view that it was unlikely that the respondent would offend again, the punitive, deterrent and preventive purposes of punishment still had to be properly reflected, not only in the head sentence, but also in the non-parole period.

17. Given the profoundly deleterious effects that the conduct of the respondent had upon his victim and the abhorrence in the community of conduct of this type – which abhorrence is reflected in the sections of the Sentencing Act to which I have already referred – the non-parole period in this case could not in my mind be any less than one of three years and six months.  Even there, I consider that the total sentence could be described as merciful.

    Conclusion

18. For these reasons I would make the following orders:

    1.     grant permission to appeal to the Director of Public Prosecutions;

    2.     allow the appeal;

    3.     set aside the sentence imposed by the judge;

    4.in its place impose again the head sentence of six years imprisonment and impose a non-parole period of three years and six months, that sentence being taken to have commenced on 9 March 2012.

19. PEEK J.   Application by the Director of Public Prosecutions for permission to appeal against sentence.

    Introduction

20. The respondent was born in December 1961. He and his wife were married in the 1980’s and their daughter, M, was born on 8 May 1988. The respondent pleaded guilty to a charge of persistent sexual exploitation of a child, his daughter M, contrary to s 50(1) Criminal Law Consolidation Act 1935.  The offence occurred between 1993 and 1996 when M was aged between five and eight years.

21. The District Court sentencing Judge (the Judge) sentenced the respondent on the factual basis that he had performed approximately six acts of digital penetration, six acts of cunnilingus and had forced M to perform a lesser number of acts of fellatio over the above period of time. This conduct came to occur in circumstances where M was in the habit of crawling into bed with the respondent and his wife who was a sound sleeper; the respondent initially began to fondle M on such occasions but this escalated to the serious criminal conduct charged. The sentence imposed was imprisonment for six years with a non-parole period of one year. The DPP seeks permission to appeal pursuant to s 352(1)(a)(iii) Criminal Law Consolidation Act 1935 on the basis that the sentence is manifestly inadequate. 

    The 2003-2010 hiatus

22. The matter of the delay in initiating a prosecution from 2003 to 2010 and the associated rehabilitation of the respondent was the most important factor leading to the imposition of the low non-parole period and will need to be considered in some detail.

    The initial report by M in 2003 and the subsequent events

23. The charged conduct ceased in 1996.  About seven years later in May 2003, when she was aged 14 years nine months, M complained of that conduct to her school chaplain who referred the matter to the Department of Families and Youth Services (FAYS) and SA Police (SAPOL) (together referred to as the Governmental Agencies).  Discussions occurred in May 2003 between the Governmental Agencies, M, A, and the respondent.  Such discussion also included discussion with officials of the Sexual Offender Treatment and Assessment Programme (SOTAP).  It was resolved between all parties that instead of criminal charges being laid, the respondent would attend at SOTAP to obtain treatment and while doing so would move out of the matrimonial home.

24. It is important to note that the respondent’s plea was expressly made on the basis that he put no pressure whatsoever on M to withdraw her allegations.  This is consistent with M’s police statement in which she stated:

    It was my decision not to go ahead with police before about my dad, because I am and always have been, fairly family-orientated and I didn’t want to damage the family by sending him to court  …

25. The agreed course of action involved the respondent moving out of his home and living in a caravan for some 14 months while successfully completing stages one and two of the SOTAP course.  Having done so, the respondent moved back into the matrimonial home with the consent of A in about September 2004.

26. The fact that the respondent was prepared to leave his accustomed surroundings and comforts and live under circumstances of regimentation, inconvenience and discomfort for some fourteen months affords significant confirmation of the respondent’s contrition and desire to be rehabilitated and supports the Judge’s assessment that the respondent is now rehabilitated and will not reoffend.  The fact that the respondent confessed his guilt to officials at SOTAP in detail and complied with the further requirement to do so in group sessions in front of others, involving considerable shame and embarrassment to himself, is further evidence that this is so.[1]

    [1]    The above matters were confirmed by a report from Owenia House (previously SOTAP) tendered by counsel for the respondent; see AB 32-36.

    The re-opening of the matter by M in 2010

27. In May 2010, after about 28 years of marriage, the respondent and A separated in acrimonious circumstances.  As at the time of giving her police statement in relation to this matter, A was seeking a divorce.  There were various issues raised by both parties quite separate from the matter of the respondent’s criminal offending.  There is no point in going into these matters.

1. The request by M to the police to re-open her complaint against the respondent occurred shortly after the separation and appears to have came about largely as a result of A then actively encouraging her daughter to have the matter re-opened.  M stated in her police statement (referring to her mother): “… she was the one that encouraged me to pursue charging dad after they split up.”

2. Also at about this same time, A made a separate report to police that she wished police action to be taken against the respondent on the basis that he had, during the course of the marriage, forced her to have sex with him.  The precise basis of this allegation is not before the Court and whether any action is to be taken in relation to that report is unknown.  A stated in her police statement in relation to the matter before the Court that she had, during the course of the marriage, considered the respondent’s sexual demands excessive and that “He was very sexually active, and I would often give in to him, even though I really didn’t like having sex.  I just felt I sort of had to, just to keep him quiet.”

   The Judge’s sentencing remarks

3. His Honour found that the respondent had no relevant prior offending; was contrite; had pleaded guilty at effectively the first opportunity; and had spared his daughter the trauma of giving evidence.

4. Most importantly, his Honour found that the respondent had rehabilitated himself since the offending had ceased in 1996.  His Honour was of the view that personal deterrence had little part to play in the present circumstances since he considered that the respondent would not reoffend.  He stated:

   I understand that the resurfacing of this offending following your rehabilitation must have been difficult.  I have noted that you successfully completed a SOTAP course from 2003/2004 and I have seen and had assistance from a psychological report from Dr Louis of Owenia House and assessment from Dr Fugler, a well-known forensic psychologist.

   I note that you have in place all the correct strategies to deal with any temptation and that since this offending you are a substantially rehabilitated man.  You have not offended since then.

5. His Honour found that the delay between the initial report in 2003 and sentencing in 2012 was “significant”.  He considered that the matter of a criminal prosecution should have been addressed by the authorities in a conclusive way when the matter was first reported in 2003 and stated:

   (I)t is extremely regrettable that the authorities did not pursue this serious matter until some seven years later.

6. In saying this, and indeed in coming to his sentencing decision, his Honour no doubt bore in mind a number of important facts put before him including:[2]

   ·that by the time of sentencing the respondent had formed a successful relationship with a new female partner and was again in stable circumstances;[3]

   ·that the respondent is now to be required to undergo a second separation process of dislocation, embarrassment and punishment for the same offending;

   ·the decision of the Governmental Agencies not to initiate a prosecution in 2003 and the actions taken by the respondent in reliance upon that decision including his 14 month stint in a caravan and attending SOTAP; and

   ·the established fact of the respondent’s rehabilitation by the time that M decided to again complain to the police in 2010 about the offending that had ceased in 1996.

   [2]    His Honour’s sentencing remarks are relatively brief but they must be read in the context of the full submissions and written material placed before him.  In not dissimilar circumstances Kirby J observed in Dinsdale v The Queen (2000) 202 CLR 321, 333 [39]: “It is important to consider the sentence so imposed in the context of the submissions put to Judge Viol on behalf of the parties. Sentencing remarks should not be read in isolation. Ordinarily, as here, they respond to the submissions that are made.”

   [3]    Report of Mr Alan Fugler psychologist AB27.

7. His Honour imposed a head sentence of six years indicating that he had reduced it from a starting point of nine years having regard to the plea of guilty, rehabilitation and contrition and in all of the circumstances fixed a lower than usual non-parole period of 12 months.

   General principles relating to the grant of permission to the DPP to appeal

8. Although s 340 Criminal Law Consolidation Act 1935 has the effect of restricting the effect of double jeopardy principles on the disposition of an appeal where permission has been granted, it has no effect on the antecedent question of whether permission to appeal should be granted.[4]

   [4]    R v Abdulla (2011) 109 SASR 258; R v Harkin (2011) 109 SASR 334; R v Saunders (2011) 210 A Crim R 1; R v Marien [2011] SASCFC 116.

9. A strict approach continues to be taken to the granting of permission to the prosecution to appeal against sentence.  In Malvaso v The Queen,[5] the significance of the requirement of permission to appeal arose in a particularly acute form.  The Court of Criminal Appeal had purported to allow a prosecution appeal against sentence but had not granted the required permission to appeal, the parties erroneously assuming that a single Judge had previously done so.[6]  Deane and McHugh JJ stated:[7]

   In such a case, the court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified.

   [5] (1989) 168 CLR 227, 234-235.

   [6]    The single Judge had in fact “referred” the case to the Court of Criminal Appeal.

   [7] (1989) 168 CLR 227, 234-235.

10. In Everett v The Queen,[8] Brennan, Deane, Dawson and Gaudron JJ approved the passage extracted from Malvasso above and stated:[9]

    In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen:

    an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.

    The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle”.

    [Footnotes omitted]

    [8] (1994) 181 CLR 295.

    [9] (1994) 181 CLR 295, 300.

11. Their Honours further emphasised that the power to grant permission to appeal “should be exercised only in the rare and exceptional case” and stated:[10]

    A court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case.  An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.

    [Footnote omitted]

    [10] (1994) 181 CLR 295, 299.

12. Their Honours also observed:[11]

    In the Court of Criminal Appeal in the present cases, Zeeman J correctly recognized that the question whether there should be a grant of leave to appeal against sentence is required to be considered as a distinct matter and that the mere fact that an appeal would be upheld in the event that leave were granted “ought not be determinative of” the application for leave notwithstanding that “the merits of a proposed appeal constitute a relevant consideration to the question of leave”.

    [11] (1994) 181 CLR 295, 303.

13. Finally, I have regard to the following statements of McHugh J which, in my view, are in no way inconsistent with the plurality judgment.  His Honour stated:[12]

    It is well established that, in those jurisdictions where the Crown has a right to apply for leave to appeal against a sentence, leave should be given only in exceptional circumstances.  The need for exceptional circumstances imposes a stringent barrier to the grant of leave to appeal in such cases.  … 

    …

    If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals.  It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved.  Such cases, however, are likely to be rare.  Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task.  What is the range in a particular case is a question on which reasonable minds may differ.  It is only when a Court of Criminal Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence.  Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave.  Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence.  The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave.

    [12] (1994) 181 CLR 295, 305-307.

14. In R v Payne[13] a joint judgment of five members of the South Australian Court of Criminal Appeal stated:

    [86]The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known.  Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffiths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213.

    [13] (2004) 89 SASR 49.

15. It is to be noted that the Court in Payne used the phrase public confidence in the administration of justice as part of its formulation of principle.  While the phrase “shock the public conscience” is sometimes still encountered, its use was positively discouraged by the Court of Criminal Appeal in the decision of R v Sioziz.[14]  There, Perry J, with whom Doyle CJ agreed, noted that while the terminology “so disproportionate to the seriousness of the crime as to shock the public conscience” had originally been used in order to stress the height of the hurdle to be overcome before an appeal could succeed, the phrase “shock the public conscience” had since come to be used in a rather emotive fashion such as to be unhelpful to analysis.  His Honour stated:

    [20]In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression “shock the public conscience” by reference to the sentence under appeal, should now be, or form part of, the appropriate test.  There is much evidence to suggest that these days, the public conscience is easily shocked.  It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown.

    [21]I think that it is better to adopt as the appropriate principle which should inform the Court in the exercise of its discretion to grant leave to appeal to the Crown, the formulation which finds expression in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen, namely, that the Crown should be given leave to appeal against sentence “only in the rare and exceptional case”, which would ordinarily confine intervention by the Court of Criminal Appeal to cases where it is necessary to avoid “the kind of manifest inadequacy or inconsistency in sentencing standards” which might properly be described as constituting “error in point of principle”.

    [Footnotes omitted]

    [14] (2004) 236 LSJS 88.

    The nature of the present proposed appeal

16. The proposed grounds of appeal were stated as follows:

    [3]The grounds upon which leave to appeal are sought are that the sentence imposed is manifestly inadequate in that:

    a)    It fails to adequately reflect the seriousness of the criminal conduct and the aggravating circumstances of the offending.

    b)    It fails to reflect the need for personal and general deterrence.

    c)    It fails to provide, establish or maintain adequate levels of punishment for offences of this nature.

17. Although the first line reproduced above refers to grounds in the plural, there is clearly only one proposed ground of appeal, namely manifest inadequacy, being error of the third kind referred to in House v The King.[15]  The words “in that” both introduce and characterise the following paragraphs (a) to (c) as particulars of the previously stated ground of appeal.[16]

    [15] (1936) 55 CLR 499.

    [16]   Cf Dinsdale v The Queen (2000) 202 CLR 321, 325 [5] (Gleeson CJ and Hayne J): “Properly understood, the first three grounds seem to have been little more than particulars of the last. Thus, as was accepted in argument in this Court, the appeal to the Court of Criminal Appeal was based upon an allegation of manifest inadequacy rather than specific error. That is, the error assigned was of the third kind mentioned in House v The King.  Only if this error was demonstrated was it open to the Court of Criminal Appeal to “pass such other sentence warranted in law ... in substitution” for the sentence passed at trial.”

18. That manifest inadequacy is the only proposed ground of appeal is confirmed by the fact that neither the proposed ground nor its particulars assert: any error of law; or any fact finding error; or the taking into account of irrelevant considerations; or any failure to take relevant considerations into account which are the grounds (other than manifest inadequacy) available in such an appeal as is recognised in decisions such as Dinsdale v The Queen.[17]

    [17] (2000) 202 CLR 321.

19. The proposed ground of appeal expressly (and correctly) states that it is “the sentence” that is asserted to be inadequate.  The sentence comprises both the head sentence and the non-parole period and both must be considered in order to make a judgment as to asserted manifest inadequacy of the sentence; the non-parole period must be considered in the light of the head sentence and not just by reference to its numerical proportion to the length of the head sentence.

20. At the hearing of the application, senior counsel for the DPP conceded that the length of the head sentence did not constitute appellable error and that he only complained about the non-parole period.  However, this concession does not alter the above position in any way.  As a matter of principle, while a sentence might be manifestly inadequate by reason of an excessively low non-parole period in circumstances where the head sentence by itself is not manifestly inadequate, one could only come to that conclusion after having had close regard to all of the circumstances of the case, including the nature of the head sentence.

21. The above analysis does not depend upon the precise formulation of the proposed grounds of appeal.  Although it might be better to specifically refer to the non-parole period if that is to be the real focus of attention, the non-parole period is part of the sentence itself and it is therefore not immune from attack under a ground of appeal of the present type.  Of course, an additional ground of appeal asserting that the Judge in fixing the non-parole period made a specific error of one of the types referred to in Dinsdale v The Queen[18] would raise different matters for consideration but no such complaint is made, or could be made, in the present case.

    [18] (2000) 202 CLR 321. The specific errors are: an error of law; a fact finding error; taking into account irrelevant considerations; failure to take relevant considerations into account.

    Consideration of the head sentence

22. It is clear that the starting point of nine years adopted by the Judge came well within any range referred to by s 29D Criminal Law (Sentencing) Act 1988 (the Act) or The Queen v D[19].  Of necessity, any such starting point must be somewhat imprecise.  As Doyle CJ stated in The Queen v D:[20]

    It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure.  In an appropriate case the starting point might be higher or lower.

    [19] (1997) 69 SASR 413.

    [20] (1997) 69 SASR 413, 424. I also note the remarks of Gray J (with whom Kelly J concurred) in R v Marikar [2010] SASCFC 36, [42]; “The construction of this section is not without difficulty. It is clear that Parliament intended to give legislative efficacy to the remarks of the Court of Criminal Appeal in The Queen v D. However, it is to be noted that Doyle CJ emphasised that he did not consider it appropriate to, nor was he attempting to, “establish exhaustive guidelines for the imposition of sentences under s 74” of the Criminal Law Consolidation Act.

23. Further, Doyle CJ specifically emphasised in The Queen v D that any starting point would, in any event, be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on.  In R v Marien[21] the Court (Gray, Sulan and Blue JJ) stated in a passage that I would respectfully adopt:

    [26]Section 29D does not fetter the Court’s discretion to determine the sentence appropriate to each individual case, having regard to all the circumstances of the offending and matters personal to a defendant. The effect of s 29D does no more than require the Court to have regard to the decision in R v D.

    [21] [2011] SASCFC 116.

24. In the present case, the Judge reduced a starting point of nine years to six years having regard to all of the circumstances.  These included the relatively common matters of the respondent having no relevant prior offending; that he was contrite; that he had pleaded guilty at effectively the first opportunity; and that he had spared his daughter the trauma of giving evidence.  Such matters largely corresponded to examples given by Doyle CJ in The Queen v D of “a plea of guilty, co-operation with the police, genuine contrition and so on”.

25. However, in addition to the above matters were the further unusual matters comprising and arising out of the 2003-2010 hiatus referred to above.  In my view, these matters, in conjunction with the more common matters also referred to above, could well have warranted a greater reduction from a nine year starting point and the consequent imposition of a sentence of somewhat less than six years in the present case.

    Fixation and appellate review of non-parole periods

26. It is well accepted that the Judge must take into account all relevant matters relating to the offending as well as to the personal circumstances of the defendant both when fixing a head sentence and also when fixing a non-parole period.  Nevertheless, there is a clear difference in emphasis of approach to the two tasks.  When fixing a non-parole period, subjective matters personal to the defendant and his or her rehabilitation come into much closer focus and different weight may be given to these subjective factors than when fixing the head sentence.  Thus Doyle CJ observed when fixing a non-parole period in R v Miller:[22]

    [42]As was indicated by the High Court in Shrestha, I must consider all factors relevant to the setting of a head sentence, but it is appropriate to give greater weight to rehabilitation of the prisoner when fixing a non-parole period, and to bear in mind the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.

    (Emphasis added)

    [22] (1999-2000) 76 SASR 151, 160.

1. And in Bugmy v The Queen,[23] Mason CJ and McHugh J stated:

   … the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence.  Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.

   (Emphasis added)

   [23] (1990) 169 CLR 525, 531.

2. This difference has important consequences for any goal of uniformity in sentencing, particularly in relation to non-parole periods as distinct from head sentences.  Putting the matter somewhat simplistically, while it may be realistic to aim for a certain degree of uniformity in head sentences (where there may be a focus on frequently re-occurring comparable sets of objective circumstances) it is less realistic to hope for comparable uniformity in non-parole periods which are more likely to be significantly affected by highly variable sets of subjective circumstances surrounding particular offenders.  Thus in an important passage in R v Moyle[24] Perry J (with whom Lander J concurred) stated:

   There can never be a tariff for non-parole periods for any offence.  The fixation of a non-parole period commonly involves an allowance for purely personal factors which have less relevance to the head sentence as opposed to the non-parole period.  For that reason, it has always been accepted that there is much more scope for the exercise of a wide discretion in the fixation of the non-parole period as opposed to the determination of an appropriate head sentence in those cases where the fixing of the head sentence is in the hands of the Court.

   (Emphasis added)

   [24] (1996) 186 LSJS 462, 465.

3. Of course, as a matter of general principle, non-parole periods should, just as head sentences, operate as a deterrent and be properly proportionate to the gravity of the crime.  The following passage in the judgment of King CJ in R v Creed is often cited as illustrative of this proposition:[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,...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 crime 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.  …

   [25] (1985) 37 SASR 566, 568.

4. There may appear to be a certain tension between this proposition and the propositions as to a likely higher degree of variability of non-parole periods as referred to above.  However, in the same judgment in R v Creed,[26] King CJ made it plain that there can be no a priori proportionate or percentage norm for a non-parole period (relative to the head sentence) from which one must start or to which one must conform.  Thus King CJ (with whom Cox and Olsson JJ concurred) stated:

   … the Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm.  Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case.  In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part.  Nothing in the nature of a norm can be acceptable.

   [26] (1985) 37 SASR 566, 569.

5. In expanded form, I consider the position to be as follows.

6. First, as stated above, the primary principle is that all relevant matters relating to the offending as well as to the personal circumstances of the defendant must be taken into account both when fixing a head sentence and also when fixing a non-parole period.[27]

   [27]   Dinsdale v The Queen (2000) 202 CLR 321.

7. Secondly, the application of that principle by the Courts over a period of time will tend to produce discernible patterns of proportionality of non-parole periods to head sentences in what may constitute the large majority of cases.  However, to recognise the occurrence of that process is entirely different to stating that there is an a priori norm to which one must adhere when sentencing: this is the point powerfully made in the extract from R v Creed[28] immediately above.

   [28] (1985) 37 SASR 566, 569.

8. Thirdly, it follows that an exceptionally weighty factor pointing in one direction (or a combination of weighty factors each pointing in the same direction) may legitimately result in both high and low non-parole periods significantly deviating from the general discernible pattern.  For example, the commission of a number of separate crimes of great objective seriousness in disgraceful circumstances by a trusted police officer, with few or no subjective mitigating circumstances, will unsurprisingly produce a proportionally high non-parole period.[29]  Similarly, the Court may encounter a combination of special and unusual mitigating factors which will tend to result in an exceptionally low non-parole period.

   [29]   The result in R v Creed (1985) 37 SASR 566 is a reasonable example.

9. Fourthly, one must have regard to the matters referred to in s 10 of the Criminal Law (Sentencing Act). In the present case, s 10(1)(c) and (ec) apply.[30] Section 10(1)(ec) engages s 10(4) which in turn provides:

   (4)A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.

   [30] Section 10 – Matters to be considered by sentencing court:

   (1)A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:

   …

   (ec)    in the case of a sexual offence committed against a child – the need to give proper effect to the policy stated in subsection (4); …

10. The approach of Duggan J to this provision in the context of a prosecution appeal in R v Marikar[31] is helpful to the present analysis.  The prosecution there applied for permission to appeal against the sentence being a head sentence of five years, with a non-parole period of two years, suspended upon the respondent entering a bond.  The respondent, who was aged 44, had pleaded not guilty but was convicted of three offences of aggravated indecent assault on a 13 year old girl.  The respondent was the victim’s diving coach and the offences were committed in the course of training sessions over a two day period; however, they were preceded by other occasions when he touched the complainant on the vagina during massages over a period of approximately six weeks commencing when the complainant was 12 years old.

    [31] [2010] SASCFC 36.

11. Duggan J approached the matter of s 10(1)(ec) and s 10(4) in the context of a consideration of the whole of the sentence imposed and concluded that the head sentence adequately discharged the duty imposed by those provisions. His Honour stated:

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

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

12. These remarks of his Honour, which I respectfully adopt,[32] recognise that non-parole periods will tend to vary according to differing sets of subjective circumstances and that in cases where a low non-parole period is called for by the particular subjective circumstances, the duty to give effect to the primary policy of protecting children from sexual predators by giving paramount consideration to the need for deterrence may primarily be carried out through the imposition of an appropriate head sentence.[33]

    [32]   Duggan J dissented in relation to the actual result in the case but that does not affect the passage in his judgment presently referred to.

    [33]   Of course, “paramount” consideration does not mean the only consideration.  Thus in Champion v Champion (1971) 1 SASR 594, 598 Bray CJ, in the context of s 85(1) of the Federal Matrimonial Causes Act which provided that in proceedings concerning the custody, guardianship, welfare, advancement or education of children of a marriage ‘the court shall regard the interests of the children as the paramount consideration …’ stated: “I do not think that … nothing else except the interests of the children can be regarded.  After all, “paramount” is not equivalent to “sole”.  The very use of the word paramount in the phrase “paramount consideration” to my mind implies that there may be other considerations, though of course they must be subordinated to the interests of the children.  …  Provided, therefore, I recognise that the interests of the child must be the paramount consideration, I do not regard myself as debarred from taking into account in due subordination other factors”.

    Rehabilitation of the offender

13. The most obvious and important single factor tending to produce a lower non-parole period is that of rehabilitation of the offender.  It is necessary to notice two different factual situations that may be referred to as predictive rehabilitation and established rehabilitation.

    Predictive rehabilitation of the offender

14. The task of the Judge will very often be largely predictive since, at the time of sentencing, relatively little time will usually have passed since the offending.  While indications of likely rehabilitation will then be of greater or lesser strength according to all of the circumstances, the question of whether rehabilitation will actually occur in the future may often be a particularly difficult one.

15. Nevertheless, authoritative decisions stress that interference with the discretion of Judges to exercise leniency when they positively predict likely rehabilitation must be guarded against.  The passage in Osenkowski v The Queen[34] that has been cited in many subsequent sentencing cases was clearly directed to predictive rehabilitation.  King CJ there said:

    It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.  The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.

    [34] (1982) 30 SASR 212-213.

16. In the later decision in R v Collyer[35] the Court was concerned with a prosecution appeal against a non-custodial sentence (consisting of fines and a bond to be of good behaviour) for trading in methylamphetamine and possessing methylamphetamine for sale.  The appeal was dismissed and the remarks of King CJ are once again directed to predictive rehabilitation:

    It is clear from the above passage that the learned judge was mindful of the standards of punishment which have been sanctioned by this Court for trading in this class of drug.  He considered, however, that he was justified by the evidence in the particular case in tailoring his order to the special needs of this case.  He wished to encourage the respondent in what he considered to be her ‘clear resolve not to offend again’.  If the object of the learned judge’s course of action is achieved, the result for the community will be far better than could be achieved by any deterrent penalty.  General deterrence is a very important consideration in relation to drug dealing offences but its importance must not be allowed to deprive sentencing judges of their discretion to exercise leniency with a view to achieving reform where there are proper grounds for that course.

    [35] (1985) 126 LSJS 111, 113.

17. In the recent decision of R v Marikar[36] Gray J expressed the following remarks about Osenkowski with which I respectfully agree:

    [48]Earlier in these reasons I referred to the observations of King CJ in Osenkowski.[37]  For almost 30 years these observations have been approved and applied by this Court without qualification.  The remarks have been adopted by interstate intermediate appellate courts.  The remarks have been approved by the High Court.[38]  This Court should continue to apply the principles articulated in Osenkowski with rigour.  …[39]

    [36] [2010] SASCFC 36.

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

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

    [39]   His Honour went on to state that issues of double jeopardy arise and this, of course, remains so but only in the context of the decision to grant permission to appeal.

    Established rehabilitation of the offender and delay

18. A very important and unusual fact in the present case is that due to the considerable effluxion of time by the date of sentencing, the respondent could rely upon positive established rehabilitation as distinct from merely appealing to what I have referred to above as predictive rehabilitation.

19. Because of its more certain nature, positive established rehabilitation should, at least in the circumstances of the present case, be given more weight than predictive rehabilitation.

20. There are many decisions addressing the matter of delay in the context of sentencing and including its relationship with rehabilitation.  I note that in the decision of the Court of Criminal Appeal in R v Pickard[40] a number of the authorities are collected and I gratefully adopt the summaries of two of the members of that Court.  Thus Gray J there stated:

    [40] [2011] SASCFC 134.

    [21]In Law; Ex parte Attorney-General (Qld),[41] it was held that delay will not be a mitigating factor unless it causes unfairness to the offender.[42]  There, two “obvious” circumstances were discussed in which it would be appropriate for delay to be mitigatory.  One of those circumstances is relevant to the present proceeding and was described in the following terms:[43]

    … where the time between commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress.  That factor was referred to by Street CJ in Todd [1982] 2 NSWLR 517 at 519, 520 in a passage cited with approval by the High Court in Mill (1988) 166 CLR 59 at 64. See also Bell (1981) 5 A Crim R 347 at 351; Quinlivan (Crt of Crim App Vic No 291 of 1994).  Duncan is also an example of this.

    [22]Accordingly, a convenient starting point in relation to delay where rehabilitation has been achieved during that period is the judgment of Street CJ in Todd where the following observations were made:[44]

    … [W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he  comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

    [23]   In Kernich, Debelle J set out the above remarks in Todd and observed:[45]

    Those observations were made in circumstances different from these, but they are, nevertheless, relevant.  The observations apply with even greater force when there has been an exceptional delay of this kind, and in that period of delay the offender has taken substantial and successful steps towards his own rehabilitation.

    [24]The observations of the Court of Criminal Appeal of Western Australia in Duncan provide a further indication of the importance of rehabilitation in circumstances such as the within matter:[46]

    … where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.

    [41]   R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63.

    [42]   R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63, 66 cited with approval in R v Leggett [2000] WASCA 327, [34]-[35]; Thorn v Western Australia [2008] WASCA 36, [37]; R v Lekaj (1997) 92 A Crim R 325.

    [43]   R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63, 66.

    [44]   R v Todd [1982] 2 NSWLR 517, 520 (Street CJ, with whom Moffitt P and Nader CJ at CL agreed). These remarks have been approved in a number of subsequent decisions; see for example, R v Suckling (1983) 33 SASR 133, 136 (Legoe J, with whom Wells & White JJ agreed).

    [45]   Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454, 459.

    [46]   Duncan v The Queen (1983) 9 A Crim R 354, 356.

21. And Blue J stated:

    [95]The following general principles have been established as to whether or not unnecessary delay in the investigation and prosecution of an offence is a factor to be taken into account in favour of the defendant.

    1     Mere unnecessary delay, without being coupled with relevant changes occurring during the delay, is not usually a reason in itself to reduce or suspend a sentence if otherwise indicated (although this will obviously depend on the length of the delay and the particular circumstances).[47]

    [47]   Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454, 459 per Debelle J; R v Micelli [1998] 4 VR 588, 591 per Tadgell JA (Winneke P and Charles JA agreeing); R v Liddy (No 2) (2002) 84 SASR 231, [42]-[43] per Mullighan J (Williams J agreeing at [148]) and [182]-[183] per Gray J; R v P [2003] SASC 428; (2003) 87 SASR 287, [31]-[35], [78]-[79] per Perry J (Besanko J agreeing).

    2     Where, during the period of the unnecessary delay, the defendant has taken major steps in the progress of his or her life resulting in a substantial change in his or her personal circumstances, the combined effect of the unnecessary delay and the changed life circumstances may play a dominant role in the determination of an appropriate sentence.[48]

    [48]   Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454, 459 per Debelle J (quoting and applying R v Todd [1982] 2 NSWLR 517 at 519 per Street CJ (Moffitt P and Nagle ECJ agreeing)); R v Miceli [1998] 4 VR 588, 591 per Tadgell JA (Winneke P and Charles JA agreeing); R v P (2003) 87 SASR 287, [31]-[35], [78]-[79] per Perry J (Besanko J agreeing).

    3     Where, by the time of sentencing, the defendant has undergone rehabilitation, the combined effect of the unnecessary delay and rehabilitation will usually be taken into account in favour of the defendant.[49]

    [49]   R v Law; ex parte Attorney-General (Queensland) [1996] 2 Qd R 63, 66 per Pincus and Davies JA and Demack J; R v Liddy (No 2) (2002) 84 SASR 231, [42]-[43] per Mullighan J (Williams J agreeing at [148] and [182]-[183] per Gray J; R v P (2003) 87 SASR 287, [31]-[35], [78]-[79] per Perry J (Besanko J agreeing).

    4     The existence of genuine remorse and contrition are taken into account in conjunction with, or as part of, rehabilitation.[50]

    [50]   R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231, [48]-[51] per Mullighan J (Williams J at [148] agreeing).

    [96]In R v Kane, Gowans, Nelson and Anderson JJ took into account an unnecessary delay of 16 months from November 1972 to March 1974 and said: [51]

    … regard must also be had to the fact that the delay would leave room for life to be ordered according to plan in the meantime, and consequently it must be regarded as a consideration.

    [97]In R v Duncan,[52] Wallace, Brinsden and Roland JJ took into account a lengthy unnecessary delay during which the defendant had re-established himself in allowing an appeal and imposing a non-custodial sentence.

    [98]In R v Winchester, Hunt CJ (Smart and Grove JJ agreeing) took into account an unnecessary delay of about three years in the prosecution of the defendant, during which time she engaged in rehabilitation, in allowing an appeal and imposing a non-custodial sentence and said:[53]

    … what may have been required by way of punishment if the prosecution had been instituted speedily is no longer necessarily required when the prosecution is, without any valid explanation, brought on tardily.

    That very special circumstance, or qualification to the general rule that general deterrence requires the imposition of a custodial sentence in these cases, has been applied not infrequently …

    [99]In R v Liang & Li, Winneke P (Ormiston JA and Crockett AJA agreeing) in allowing an appeal and suspending the sentences of imprisonment said: [54]

    His Honour has fallen into error in failing to pay any or any sufficient regard to the effects of the delay which occurred between the commission of these offences and the date of the plea and sentence.  As I have already indicated, these offences were committed between May and August 1992, yet it was not until April 1995 that the applicants were sentenced.  By this stage, as might well have been expected, the circumstances of the applicants had changed significantly.  Each applicant had married, each had fathered a child and each had obtained stable employment.  That delay, on the material available to the judge, was in no way attributable to the fault of either applicant and provided, in my view, a powerful mitigating factor which does not appear to have been afforded proper weight in the sentencing process.

    [100]In R v Miceli, Tadgell JA (Winnecke P and Charles JA agreeing) referred to an unnecessary delay of 12 months between the defendant admitting the offence at interview and being charged, and a further delay of 14 months until he was sentenced, in allowing an appeal and suspending the sentence of imprisonment after three months and said:[55]

    There is no doubt that proper sentencing principles dictate that undue delay in the disposition of charge should work in favour of a prisoner being sentenced … most particularly is the matter of delay between the commission of an offence and the imposition of a sentence to be taken into account when rehabilitation is a real prospect;  and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life.

    [51]   R v Kane [1974] VR 759, 767.

    [52]   Duncan v The Queen (1983) 9 A Crim R 354, 356-357.

    [53]   R v Winchester (1992) 58 A Crim R 345, 349.

    [54]   R v Liang & Li (1995) 82 A Crim R 39, 45.

    [55]   R v Miceli [1998] 4 VR 588, 591.

1. I do not intend to undertake a further analysis of the cases.  Obviously one may encounter factual situations where rehabilitation occurs during a lengthy delay for which the defendant, in varying degrees, is himself responsible; the paradigm example may be where a defendant absconds on bail and is later captured after he has been rehabilitated.  Credit in such cases will be very much less than in a case of the type encountered in the present proceedings.

2. The present case bears no similarity to that situation and is more similar to cases such as Kernich v Director of Public Prosecutions (Cth),[56] R v Miceli[57] and The Queen v P[58] where the delay was clearly not the fault of the defendant.  However, in my view the present case is considerably stronger than those cases in that the respondent here proceeded to undergo a course of rehabilitative treatment in accordance with the decision of two Governmental Agencies in the unusual circumstances to which I have referred above.  The fact of the matter is that I have not been able to find a reported case like the present and neither party to the present application referred the Court to one.

   [56] (1997) 68 SASR 454.

   [57] [1998] 4 VR 588.

   [58] (2003) 87 SASR 287.

   The Judge’s approach to the head sentence and non-parole period

3. I consider that the matter of delay in the present very unusual circumstances, coupled with established rehabilitation and the other factors in favour of the respondent referred to above, constituted a powerful case for a merciful disposition.

4. His Honour gave effect to these features in relation to the head sentence through a reduction which should be characterised as moderate rather than over generous.  Further, his Honour did not suspend the sentence and while, on balance, I not disagree with that decision, it must be said that there are authorities pointing in the direction of at least the possibility of suspension in such circumstances.[59]

   [59]   In R v Garrett [2005] SASC 58 White J (with whom Debelle and Besanko JJ concurred) stated at [24] that decisions of this Court do not suggest that “suspension of a sentence of imprisonment imposed in respect of multiple offences of indecent assault or unlawful sexual intercourse would never be appropriate”.  His Honour further stated at [26]: “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.  [footnote referring to The Queen v D (1997) 69 SASR 413 at 423 per Doyle CJ]. 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, [footnote referring to R v Temby [2003] SASC 230] or at least, the suspension of the sentence imposed at first instance has not been disturbed on appeal. [footnote referring to Police v Hunt (Doyle CJ, 14 April 1997, Jdgt S6123, Unreported); R v Oberthur (Full Court, 25 September 1988, Jdgt S6881, Unreported).]  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”.

   In Dinsdale v The Queen (2000) 202 CLR 321 all of the five High Court Justices considered that the decision of the sentencing Judge to suspend a sentence for sexual offending (which had been set aside by the Court of Criminal Appeal on a prosecution appeal) should be reinstated.

   See also R v MMK (2006) 164 A Crim R 481, 486-7 [15] (Spigelman CJ, Whealy and Howie JJ): “It is acknowledged that in the present case the complainants … may feel aggrieved that the applicant does not appear to have been punished in any real sense for his criminal conduct toward them. Further, members of the community, without an understanding of all the facts and the well-established sentencing principles to be applied, might also be concerned that the result appears to inadequately express public attitudes to the offence and the offender. But the different purposes of punishment will sometimes pull in different directions. Not one of them can be considered in isolation. The justifiable limitations placed upon the promotion of those sometimes competing purposes cannot be disregarded in an appropriate case in order to address public or private desires for retribution notwithstanding the importance of that factor in the determination of appropriate punishment.”

5. His Honour obviously considered that the appropriate sentencing package was one in which the effect of the unusual factual circumstances would chiefly be implemented through the medium of the non-parole period.  It is a valid sentencing strategy to use a short non-parole period to give major effect to unusually mitigatory features with a lengthy period on parole to provide a very real sanction of revocation of his parole should there be reoffending.  His Honour was entitled to take the view that the respondent is a good candidate for parole in that he has positively demonstrated, over a considerable of time, that he is able to avoid further sexual offending and will be able to continue to do so in the future.

6. Accordingly, the length of the non-parole period must here be assessed against the background of both the highly unusual factual circumstances and the approach by the Judge which had been moderate in giving effect to the factors of delay and rehabilitation when assessing and implementing the head sentence.

   A distinction between automatic and discretionary release non-parole periods

7. As a final matter, it is important to note that in the circumstances of the present case, the expiration of the non-parole period does not lead to automatic release but merely enlivens the right of the prisoner to apply for parole the granting of which lies in the discretion of the Board.  This is so in the present case for two independent reasons.  First, Correctional Services Act 1982 s 66(1) states that a prisoner who is liable to serve a total period of imprisonment of five years or more is excluded from the right to automatic release. Second, s 66(2)(a) states that a prisoner is excluded from the right to automatic release if any part of the imprisonment for which the prisoner was sentenced is in respect of a sexual offence. Both provisions apply to the respondent.

8. The parole system in South Australia has changed on a number of occasions over the years.  In R v Miller,[60] Doyle CJ spoke in the context of a Parole Board discretionary release system (after expiration of a non-parole period) when he stated:

   [42]As was indicated by the High Court in Shrestha, I must consider all factors relevant to the setting of a head sentence, but it is appropriate to give greater weight to rehabilitation of the prisoner when fixing a non-parole period, and to bear in mind the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.

   (Emphasis added)

   [60] (2000) 76 SASR 151.

9. By contrast, in R v Tio and Lee[61] King CJ had spoken in the context of a different system where release was automatic at the expiration of the non-parole period with no further discretionary act by the Parole Board required or permitted.  His Honour noted the difference between the two types of systems thus:

   The change from a system of discretionary parole under which the non-parole period merely determined the period which must be spent in prison before parole could be considered, to an automatic parole system under which the prisoner must be released on parole at the expiration of the non-parole period, clearly calls for a re-assessment of the duration of non-parole periods.  It is now necessary for the judge at the time of imposing sentence to consider and determine what proportion of the sentence is to be spent in prison and what proportion is to be spent in the community on parole.

   [61] (1984) 35 SASR 146, 147-148.

10. His Honour considered that the non-discretionary release system generally required longer non-parole periods, stating:[62]

    As the effect of the non-parole period under the new legislation is to bring about the automatic release of the prisoner at its expiration and not merely as heretofore to determine the first date upon which he could be considered for discretionary parole, it is to be expected that, for this reason alone, the non-parole period will in future, in the general run of cases, constitute a greater proportion of the sentence than in the past.

    [62] (1984) 35 SASR 146, 148.

11. However, even in the context of the non-discretionary release system, his Honour envisaged situations where the sentencing Judge may set an unusually short non-parole period in relation to the head sentence, amounting only to a taste of imprisonment.  His Honour stated:[63]

    In a few cases the judge may feel that what is required is a taste of imprisonment followed by a lengthy period in the community under supervision and subject to the sanction of being returned to prison if the conditions of parole are not observed. In such cases the non-parole period will be relatively short.

    (Emphasis added)

    [63] (1984) 35 SASR 146, 148.

12. In R v Stewart[64] King CJ again noted the considerable difference between non-parole periods imposed under the two systems and indeed rejected as less than useful sentences pronounced in the context of a discretionary release system when considering an appropriate non-parole period under an automatic release system.  His Honour stated:

    Counsel has drawn my attention to various non-parole periods fixed in the past for the crime of murder.  I can derive no assistance from non-parole periods fixed prior to the commencement of the 1983 amendment to the Act.  Non-parole periods fixed prior to that time did no more than to confer a discretionary power upon the Parole Board to release a prisoner on parole.  The fixing of a non-parole period under the new Act results in the automatic offer of parole to a prisoner.  Very different considerations, therefore, apply.

    [64] (1984) 35 SASR 477, 480.

    Should permission to appeal be granted in the present case?

13. It is sometimes said that where a man is prosecuted for sexual crimes committed when much younger, but not detected until long after the event, it is not unfair to subject him to prison as an older man because he was able to spend the best years of his life out of prison until he was eventually called upon to pay the price.  It is further said in such cases that weight must be given to general deterrence so as to demonstrate that such crimes will eventually be found out and will be visited with substantial punishment.  

14. I bear such considerations in mind and I emphasise that, as a matter of general principle, the basic concepts of justice which underlie the criminal law require that punishment be fairly proportionate to the crime.  When fixing a non-parole period, attention must be directed to the minimum period that the defendant must, if the purposes of punishment are to be served, remain in prison.  

15. However, as stated above, the present case was very unusual in that the delay in prosecuting the respondent after the offending was discovered was not the fault of the respondent but was at the behest of Governmental Agencies with whom he fully co-operated.  In all of the circumstances, a much lower non-parole period than might be thought to be “usual” was warranted and I consider that the case for a grant of permission to appeal in the present case is far from compelling.

16. This application is not to be determined by simply comparing the non-parole period imposed with the head sentence or with the nature of the offences or by solely relying on a proportionate ratio that is asserted to be unusually low.

17. I note that in the decision of R v Marikar[65] referred to above, the Court refused the prosecution permission to appeal against a sentence of five years imprisonment with a non-parole period of two years which was suspended on entering into a bond.  Gray J (with whom Kelly J concurred) stated:

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

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

    (Emphasis added)

    [65] [2010] SASCFC 36.

18. It was there considered, correctly in my view, that in the context of a five year head sentence a two year non-parole period “was well within the sentencing discretion of the Judge”.  One notes that the present very unusual features of delay and the associated established rehabilitation discussed above were not present in that case.  Further, one cannot completely ignore the fact that the sentence was suspended in Marikar whereas here it was not.

19. Finally, I note that in Lowe v The Queen,[66] where the applicant’s sentence (after adjustment by the Queensland Court of Criminal Appeal) was a head sentence of six years with a non-parole period of one year, it was unsuccessfully argued by the applicant that the relationship between those two terms was unbalanced to such an extent that an error in sentencing was thereby disclosed.  The majority of the High Court rejected that submission and refused special leave to appeal.  Gibbs CJ stated:[67]

    No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole.  What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.  With great respect to those who may take a different view, I am unable to say that the relationship of six years to one is so unreasonable as necessarily to bespeak error.[68]

    (Emphasis added)

    [66] (1984) 154 CLR 606. Surprisingly, the case was not cited by the respondent in the present case.

    [67] (1984) 154 CLR 606, 610.

    [68]   Dawson J took a similar approach at 625.  Wilson J agreed with the reasons of both Gibbs CJ and Dawson J.

20. Interestingly, the figures (and the head sentence to non-parole period ratio) considered by his Honour are exactly the same as those presently before this Court.  I consider that Gibbs CJ’s denial that the relationship of six years to one is so unreasonable as necessarily to bespeak error has considerable resonance in the present case.

    Conclusion and disposition of the application

21. For all of the above reasons, I would refuse permission to appeal.