R v Russell (a pseudonym)
[2022] SASCA 143
•23 December 2022
Supreme Court of South Australia
(Court of Appeal: Criminal)
R v RUSSELL (A PSEUDONYM)
[2022] SASCA 143
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice Doyle)
23 December 2022
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING GUIDELINES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - SENTENCING METHODS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Crown appeal against sentence.
The respondent pleaded guilty to three counts of maintaining an unlawful sexual relationship and one count of aggravated indecent assault contrary to sections 50(1) and 56(1) of the Criminal Law Consolidation Act 1935 (SA), respectively. The respondent was sentenced by a judge of the District Court to 14 years’ imprisonment with a non-parole period of 11 years, two months and 12 days.
The victims of the respondent’s offending were his three nieces, MB, AB and HB, and his granddaughter, AH. The charged offending occurred during the period from 2008 until 2021. The victims of the respondent’s offending were each under the age of 14 years at the time the offending against them commenced.
In sentencing the respondent, the judge allowed for a degree of concurrency but did not specify the degree of concurrency as between each of the counts which resulted in a head sentence of 14 years’ imprisonment.
The Director of Public Prosecutions (SA) appeals on three grounds:
1.The sentence imposed was manifestly inadequate.
2.The judge erred in the degree of flexibility of application of the standard in R v D (1997) 69 SASR 413.
3.The judge erred in reducing the notional head sentence on account of concurrency on the basis of interconnection between the respondent’s offending.
Held per Livesey P and Doyle JA (refusing permission to appeal):
1.The sentencing judge did not err in her invocation or application of the principles of concurrency in arriving at the ultimate sentence to be imposed.
2.Whilst the starting point identified in respect of the sentence for one count was too low, the disparity between the appropriate ultimate sentence, and the one in fact imposed was not such as to justify a grant of permission to appeal.
Held per Kourakis CJ (granting permission to appeal and allowing the appeal):
1.The sentence was manifestly inadequate.
2.The sentence imposed by the District Court should be set aside.
3.The judge’s remarks fail to identify any reason for fixing notional sentences for the offending against AB and AH which fall below the guidelines given by the Court in R v D (1997) 69 SASR 413 and no basis to do so is apparent on the face of the relevant circumstances.
4.There is no explanation for the high degree of concurrency of all sentences nor is any basis for it apparent in the relevant circumstances.
5.The respondent is sentenced to a term of imprisonment of 19 years and six months with a non-parole period of 16 years, one month and two weeks.
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 56; Sentencing Act 2017 (SA) ss 26, 47(5)(d), referred to.
R v D (1997) 69 SASR 413, discussed.
Edmonds (a pseudonym) v The Queen [2022] SASCA 11; R v Ellis (2010) 107 SASR 94; R v Yaroslavceff [2022] SASCA 123; Warner v The King [2022] SASCA 142; R v D (1997) 69 SASR 413, considered.
R v RUSSELL (A PSEUDONYM)
[2022] SASCA 143Court of Appeal – Criminal: Kourakis CJ, Livesey P and Doyle JA
KOURAKIS CJ: This is an application brought by the Director of Public Prosecutions (SA) (the Director) for permission to appeal against a sentence imposed in the District Court. The respondent, Mr Russell, was sentenced to 14 years’ imprisonment on his conviction following guilty pleas to three counts of maintaining an unlawful sexual relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and one count of aggravated indecent assault contrary to s 56 of the CLCA. The Judge fixed a non‑parole period of 11 years, two months, and 12 days in accordance with s 47(5)(d) of the Sentencing Act 2017 (SA) (the Sentencing Act), which mandates a non-parole period of four-fifths of the head sentence for offences of the kind of which Mr Russell was convicted.
I would allow the Director’s application for permission to appeal. Sentencing is necessarily a discretionary exercise requiring, as it does, the balancing of competing objectives. The scope of that discretionary exercise is wider still when sentencing for multiple serious offences which raise difficult questions as to totality and the degree to which the sentences should be served concurrently, if at all. Notwithstanding the breadth of the discretionary considerations raised by the circumstances of this case, I am satisfied that the sentence was not only manifestly inadequate but was egregiously so. The sentence falls well outside the guideline for repeated and protracted sexual offending against children laid down by this Court in R v D.[1] It is necessary to grant permission to appeal, and to allow the appeal, in order to impose a sentence which properly reflects the gravity of the sexual assaults committed by Mr Russell and meets the objectives of sentencing for such offences. In the latter respect it is important to provide further guidance on the alternative sentencing structures which might be applied to achieve a proportionate sentence on multiple offences. Imposing partially concurrent sentences or making a reduction for totality are both capable of achieving that result if properly understood and not conflated as the Judge did in this case.
[1] R v D (1997) 69 SASR 413.
All of the victims were young children. The victims of two of the offences of maintaining an unlawful sexual relationship were Mr Russell’s nieces, MB and HB who were sisters. The victim of the last of those offences was his granddaughter, AH. The victim of the aggravated indecent assault was AB, the sister of MB and HB. Much of Mr Russell’s conduct was not as sexually invasive as is often found in cases of this kind, but that is not reason enough for a sentence as low as the one imposed. For his young victims, Mr Russell’s conduct was, and will continue to be, deeply damaging. The familial distress left in the wake of his offending will exacerbate the harm he inflicted. His persistence in the sexual assaults over many years calls for a sentence in which personal and general deterrence predominate.
I elaborate on my reasons below.
The offences
On 13 July 2021, AB, the victim of the count 2 aggravated indecent assault, informed Mr Russell’s partner, her aunt, that Mr Russell should not attend her 18th birthday party because he had indecently assaulted her sisters. Her aunt confronted Mr Russell who went to the local police station that day. He told the police that his nieces had alleged that he had sexually abused them and he agreed to be interviewed. He initially denied any offending and denied any sexual attraction to children. Police interviewed HB. She told them that Mr Russell had abused both her and her older sister, MB. Mr Russell was then arrested and remanded in custody. Later that evening, he asked to be reinterviewed and admitted the offences. I refer in more detail to those admissions below.
Count 1 charged Mr Russell with maintaining an unlawful sexual relationship with MB. That was the first of Mr Russell’s offending and the most protracted. Mr Russell is MB’s uncle by marriage to her paternal aunt. MB alleged that Mr Russell sexually abused her from 2008 when she was seven years old until 2015 when she was 13 years of age. In that period of time, MB regularly stayed over with Mr Russell and her aunt. The offending largely compromised indecent touching of her genitals and her breasts. On one occasion, he made MB masturbate him. On another occasion, he performed cunnilingus.
The offence of aggravated indecent assault committed against AB, the victim of count 2, was committed in 2017 when AB was 13 years of age. Under the pretext of giving AB a massage for her sore back, Mr Russell massaged her thighs close to her genitals. Mr Russell admitted to another incident, which was not charged, on which occasion he touched AB on her genitals in his loungeroom.
The victim of count 3, HB, is the youngest of the nieces against whom he offended and is the sister of MB and AB. The offending against HB commenced at about Christmas 2012, when she was eight years of age. It continued over a period of about three weeks, during which time she was staying with Mr Russell and her aunt. The offending included the indecent touching of her genitals, making MB masturbate him, and indecently lying on top of HB. When interviewed, Mr Russell admitted to the indecent touching. Curiously, he mistakenly thought that the offending had occurred over a period of two years. He denied making HB masturbate him.
The victim of count 4 is Mr Russell’s granddaughter, AH. She was born on 21 August 2015. When AH was interviewed, she told police that Mr Russell had indecently touched her vagina, breasts, and bottom a long time ago in the bath, in the shower, and when she was getting dressed. It can be accepted that, if Mr Russell had contested the offending, AH would have found the trial process extremely traumatic. Moreover, there was some risk that the evidence may not have been adduced at all.
Mr Russell admitted engaging in ‘naked play’ with his granddaughter, which included sitting her on top of him. Mr Russell also caused AH to masturbate him and on one of those occasions he ejaculated. He admitted showing AH how to touch her genitals and making AH fellate him. He admitted that his offending had commenced when AH was just four years of age.
Victim impact statements
The following summary, given in the Director’s submissions, of the victim impact statements provided to the sentencing Court warrants repetition because the devastating effect of Mr Russell’s offending must be fully appreciated when weighing the competing considerations which bear on the Director’s application for permission:
In her victim impact statement, [MB] explained the heavy emotional hurt and psychological impact that the respondent’s offending has had on her and the associated embarrassment and distress caused as a result of the overwhelming nature of the public revelation of the offending. [MB] explained that the impact upon her included severe depression and anxiety, a feeling that she cannot trust others, mainly men, and that she harboured feelings of disgust, anger and hatred. She also explained feeling a sense of betrayal that has deeply hurt her and affected her life.
[TB], [MB’s] mother, and the mother of [AB] and [HB], provided a victim impact statement in which she explained the emotional impact that the respondent’s offending has had on her and her husband. She tells how the revelation of the respondent’s offending against her daughters has caused her and her husband to feel as though they have failed to protect their children and has caused her husband to harbour significant anger associated with the offending. She explained that she experienced shock, anger, and hatred towards the respondent and feels betrayed. She questions why she didn’t see it happening. She also says that the resultant investigation has impacted the family financially due to the time she and her husband have had to take off of work to assist their daughters and police.
[TB] further explains how she observed significant negative behavioural changes in her three daughters that she now understands was a consequence of the offending. She explained that [MB] suffers from severe mental health conditions. In particular, [MB] hates being around people and is scared to trust anyone. [HB] needed to take a term off of school as a result of the matter. She explained that the offending had caused her behaviour to change from a carefree child and teenager to now thinking negatively towards herself and what others think of her. [TB] noted that [HB] had become very depressed and has said on several occasions that she “didn’t want to be here anymore”. [HB] also perceives that other family members think negatively of her for speaking out. [TB] has observed that [AB] had previously been a very active outgoing person but noticed [AB] had become very untrusting and negative towards others and shows angry behaviour.
[BM], the respondent’s daughter, provided a lengthy victim impact statement on behalf of herself and her daughter, [AH], the victim in relation to count 4. [BM] explained the heart break and feelings of anger, disgust and betrayal at the revelation that her father was the perpetrator of abuse against her daughter and three other relatives. [BM] explained that [AH] went from being a vibrant and happy child to being withdrawn and scared. Further, she observed [AH’s] eating habits change from eating properly to barely eating. She also observed [AH] engaging in odd behaviour such as touching and rubbing her genitals against sharp objects in the house. She explained that on one occasion she confided in the respondent about [AH’s] pain and mentioned she should take [AH] to the doctor. The respondent, a registered nurse, advised her against taking [AH] to the doctor and persuaded her that she was overthinking the matter, causing her to make decisions contrary to her instincts.
[BM] explained that [AH’s] behaviour was uncharacteristic for [AH] and odd for a child [AH’s] age such as incontinence at school and crying and clinging onto her when she would leave for work upon leaving [AH] in the respondent’s care – on occasion it was the respondent who would console and encourage [AH] to let her mother go to work. [BM] explained [AH] has been left confused, angry and hurt by the respondent’s actions and continues to feel like she is to blame. The matter has broken the family and caused inexplicable harm of all kinds to [BM] and [AH]. [BM] explains she is still grieving and reconciling the loss of her family as well as the emotions associated with the abuse suffered by her daughter including dealing with the financial ramifications of seeking psychological help and counselling.
(Underlining added)
I have underlined the last sentence of the penultimate paragraph for obvious reasons. Mr Russell did not dispute the conversation there described.
The police interview
Much emphasis was placed by Mr Russell’s counsel on what was said to be Mr Russell’s willingness to facilitate the administration of justice by presenting himself at the police station and by later pleading guilty to the offences with which he was charged.
Mr Russell was interviewed on the evening of Wednesday, 14 July 2021. He arrived there about 20 minutes after being told by his wife of the allegations made by his nieces.
When asked by police about his wife’s reaction to the allegations, Mr Russell answered that his wife was shocked by them and then continued:
… as, anyone would be. And I was shocked to say. I didn’t know that, um there was this harbouring on, this, this going on, so I had no idea. … so therefore, I, if I heard this, their feeling this way, they need to be believed and they need counselling, otherwise, I was a nurse for 20 years. I know the problems that relate to, this situation so I therefore, need them if I had done, something that makes them feel, unsafe. For that to receive to actually receive counselling, it’s necessary. As I said, I have been, a, a very dark place for a, about since my 20’s and unfortunately, I have, I just been um, battling a few things, all the way through so whether that um enters into, enters into it, I don’t know.
Those first responses are far from a frank confession of his offending. Indeed, he falsely suggested that his nieces had misapprehended the situation. When asked by the police officer whether he thought the things alleged could have happened, he replied:
… everything’s possible, everything’s possible it could have happened, but I don’t remember it, and I don’t, feel that I had any animosity towards me previously at all.
At that stage, the police had not spoken to Mr Russell’s nieces. Later, Mr Russell claimed to have had difficulty with his recollection of events. He could not give an example of any such difficulty affecting his recollection of any events other than the alleged sexual offences. Mr Russell continued:
… if I had done something, that um, that they remember as, an issue then, I want to put it right as far as I’m concerned, I want to put it right, I can’t remember doing anything, but if I have done something, then we need to address it.
He denied having a ‘sexual urge towards a child’ at any time in the past. He said:
I have my grandchild, I have my nieces and nephews and I have other grandchildren and, I haven’t had sexual urges towards children at all.
That last statement was a patently false one. Mr Russell later repeated that he could not recall offending against his nieces. The police suspended the interview at 6.48 pm whilst they spoke to Mr Russell’s nieces. When the interview resumed at 7.29 pm, the detectives informed Mr Russell that he was under arrest on two charges of maintaining an unlawful sexual relationship with a child. The allegations were then put to Mr Russell. The interview was again suspended until 9.42 pm. Shortly thereafter, Mr Russell indicated that he would like to be interviewed by the police again and that he waived his right to a lawyer. He then commenced some long answers in which he admitted to offending against his nieces. The answers commenced with this peculiar explanation for his newly found recollection of events:
… as the rain came down, it reminded me, of all those things I was blocking out. I am guilty of said charges before me. I have also had sexual play with my … granddaughter [AH], the sexual play started a year ago and finished several months ago.
Personal circumstances
Mr Russell is 57 years old. He has no criminal antecedents.
A psychiatric report prepared by Dr Jules Begg at the request of Mr Russell was received by the Judge. Dr Begg proffered a diagnosis of paedophilic disorder. His report recorded that at around eight years of age Mr Russell developed an addiction to pornography after discovering his father’s collection of pornography.
Mr Russell gave Dr Begg a history that at about nine years of age, his 18‑year‑old neighbour, sexually assaulted him on two occasions. He also reported that at 11 years of age, the manager of a business at which he was employed performed penetrative sex and fellatio on him.
When Mr Russell was 22 years of age, he joined a church and developed a new network of friends through which he met his wife. He stopped using pornography. That marriage broke down when he was 27 years of age. He considered reporting the abuse he had suffered to police at that time but doubted that the police would investigate it because he could not accurately recall the events.
Mr Russell began to use pornography again during his training to become a nurse. While he remained married and lived with his wife, they were not close intimately or emotionally. His interest in pornography was initially orientated towards adult heterosexual activity but became more extreme over time. Mr Russell told Dr Begg that he accidentally came across child pornography but was not attracted to it. He claimed that he reported the websites to police.
Mr Russell claimed that prior to his arrest he sought help from his pastor but did not seek out any psychological counselling. Mr Russell did not seek out any form of therapy whilst awaiting sentence but resumed Bible study groups in an attempt to regain some self-worth. He reported grappling with the idea of self‑forgiveness.
Dr Begg observed that Mr Russell justified his offending to himself because he did not use force and because his actions appeared pleasurable to his victims. He told Dr Begg that he now recognised that the entirety of his offending was wrong and that he had abused the trust reposed in him. Mr Russell’s pseudo‑justification cannot mitigate his offending against children as young as his victims. On the contrary, delusions, like the one he described, drive much offending of this kind.
Dr Begg reported that the respondent’s presentation indicated a reduced awareness of the experience of his victims and that while he had an intellectual insight into his offending, therapy was required to develop a fuller insight of the type that reduces the likelihood of further offending. As at the date of sentencing, Mr Russell had not compensated the victims but had indicated an intention to do so in the future.
Sentencing remarks
The Judge accepted that Mr Russell’s offending was causally linked to the abuse committed on him by others but correctly observed that did not mitigate his offending. It is a commonly encountered circumstance in sentencing for offences of this kind. Precisely because sexual abuse is often linked to sexual offending as an adult, sentencing courts are bound, as a matter of sentencing principle, to give relatively greater weight to general deterrence than to the tragic criminogenesis of the offending. The sentencing principles which the Court must apply do not allow, in the generality of cases, any other approach to breaking the cycle of sexual offending.
The Judge noted that the Child Protection Services, Flinders Medical Centre Assessment Report regarding the forensic interview with AH concluded that there was an ambiguity in AH’s responses about whether sexual abuse had occurred and that, without Mr Russell’s admissions as to the offending against her, those allegations may have been difficult to prove. The Judge also accepted that Mr Russell was genuinely remorseful and had instructed his counsel to actively take steps which minimised the trauma of reliving the experiences of the victims in the witness box and instructed his counsel to resolve the factual basis of the offending quickly and in favour of the prosecution.
The Judge described the offending as abhorrent and monstrous:
…You systematically worked your way through a pattern of sexual abuse of your three nieces, only one of whom was not subjected to an extended pattern of abuse only because she told you to stop. That you took advantage of the circumstances in which your daughter entrusted your granddaughter to your care to sexually abuse her suggests that even after so many years of perpetrating abuse upon your nieces you had no desire to stop and no insight into how much damage you had inflicted.
The fact that you dispelled AH’s mother’s maternal concerns and instincts that there was something wrong with her daughter in order to hide your offending and permit it to continue is an appalling aspect of your offending. In one fell swoop, you destroyed the family as your daughter knew it and left her with an understandable but completely unjustified belief that she had failed her daughter.
The devastation that your conduct has wrought is immense, irreparable, and will be felt by your victims and those who love them for years to come. Children are meant to be loved and cherished and protected by their family members and the gross abuse of trust inherent in your offending underscores the reason why Parliament has determined that the maximum penalty for the offence of maintaining an unlawful sexual relationship with a child is life in gaol.
…
Your offending involved repeated gross breaches of the trust reposed in you by reason of your familial relationship with each victim and your power to silence them with threats of consequences for disclosure. …
The Judge then indicated the sentence she would have imposed on each offence if it were the only offending as follows:
The offending in count 1 is particularly egregious because it occurred over a seven-year period, commencing when MB was seven years of age, and was so frequent that MB cannot recall how many times it happened. But for your early guilty plea, I would have sentenced you to 12 years imprisonment on this count. I discount that by 25% to nine years.
The offending in count 2 is comprised of one occasion of aggravated indecent assault, although you have admitted indecently assaulting AB on another occasion by touching her on the vagina. You are not to be punished for that offence, but it is relevant as it demonstrates that the indecent assault charge was not the only occasion that you behaved in this way towards AB. However, the conduct charged cannot be said to be the most serious example of an aggravated indecent assault. It did not involve the touching of the genitals or breasts, and was a touching that, while plainly indecent, was not persistent but was short-lived. But for your plea of guilty, I would have imposed a sentence of 14 months imprisonment. I discount that by 25% to 10 months and 15 days.
The offending in count 3 occurred over a three-week period and involved six occasions of sexual activity, including digital penetrative activity and the touching of the vagina and causing HB to masturbate you. The shorter duration of the offending and the number of occasions upon which it occurred is a basis to apply a greater degree of flexibility in the application of the standard in R v D. But for your plea of guilty I would have imposed a sentence of eight years. I discount that by 25% to six years.
The offending in court 4 involved a very young child. It occurred against a background of persistent sexual abuse of three family members over a period spanning 2008-2017. Your offending involving your own grand-daughter was a monstrous abuse of the trust of your daughter in whose care she had entrusted her own daughter. You had moved from one victim to the other over the years, although your offending in count 1 and count 3 overlapped. However, the offending in count 4, as egregious as it was, did not involve acts of unlawful sexual intercourse other than the single occasion of fellatio, an allegation not made by AH, but a sexual act admitted by you in your interview. But for your plea of guilty, I would have imposed a sentence of six years. I discount that by 25% to four years and six months.
The Judge then turned to the extent to which there should be an adjustment to the arithmetic accumulation of the sentences:
Your counsel did not contend that your offending was a course of conduct such that the sentences should not be served cumulatively. Rather, your counsel suggested that the principle of totality would require the reduction of what would otherwise be the mathematical total of the sentences I have imposed. The accumulation of the sentences I have imposed results in a head sentence of 20 years four months and 15 days.
…
In my view, there is an overlap in the matters relevant to the sentencing exercise in respect of each of the four offences to which you have pleaded guilty insofar as the offences are all of a similar nature, although the degree and frequency and extent of the sexual acts differs as between each victim, and all involve your abuse of your position of trust in a familial setting, either as an uncle or a grandfather, and all involve sexual abuse in your own home for your own sexual gratification.
In these circumstances, the imposition of a significant sentence of imprisonment in relation to counts 1, 3 or 4 would assist in achieving some of the sentencing objectives intended to be achieved by the sentence for the remainder. Although the interconnection between your offending is insufficient to characterise your offending as a single course of conduct there is, in my view, sufficient reason to apply partial concurrency to the sentences I have imposed.
In Edmonds, the Court said that the broader view of the scope of the operation of the principle of concurrency, as articulated by Kourakis J, as he then was, in R v Copeland (No 2) has been adopted in subsequent decisions of the Court of Criminal Appeal. In R v W, PL it was recognised that this broader approach to concurrency may extend to sexual offending against multiple victims. However, the Court in Edmonds sounded a caution that it will remain important in such cases to ensure that the sentence ultimately imposed adequately reflects the violation of each of the victims and this will ordinarily operate as a significant limit upon the extent of the allowance for concurrency and may, in some cases, militate against any allowance at all.
I will allow a degree of concurrency on the basis of the interconnection identified. As a result, your head sentence will be 14 years. The non-parole period must be at least four‑fifths of the head sentence. I impose a non-parole period of 11 years, two months and 12 days, which I backdate, that is, the head sentence and the non-parole period will be backdated to 14 July 2021 when you were taken into custody.
It must immediately be observed that the Judge did not specify the ‘degree of concurrency’ as between each of the counts which resulted in a head sentence of 14 years. The record of proceedings does not indicate that s 26 of the Sentencing Act was engaged. Instead, it purports to record the imposition of a discrete sentence on each count, which sentences are ordered to be served partially concurrently, but does not specify the extent of the concurrency. The sentencing orders are set out under the heading ‘Head Sentence’ as follows:
Imprisonment – 14 years
Non-parole period – 11 years and 2 months and 12 days
Non-parole period and head sentence backdated to 14 July 2021
It appears therefore that, although the Judge’s sentencing reasons adopted the ‘broader view of the scope of the operation of the principle of concurrency’, her Honour simply reduced the sum of the separate notional sentences on the grounds of totality and then imposed one sentence without expressly invoking s 26 of the Sentencing Act.
It is not surprising that the alternative approaches of ordering sentences to be partially concurrent, on the one hand, and the reduction ‘off the top’ of the sum of notional sentences which could have been imposed are conflated. For the reasons given in Warner v The King,[2] (delivered contemporaneously herewith) both approaches are calculated to arrive at a sentence which is proportionate to the circumstances of the offence and the offending. Whichever approach is adopted, the resulting sentence must be the product of the application of the matrix of sentencing objectives to the whole of the circumstances. Moreover, whichever approach is adopted, an attempt should be made to explain how, either the degree of concurrency or the extent of the reduction for totality, was arrived at. Speaking generally, largely concurrent sentences are imposed for offences committed within a single criminal enterprise because of the common criminal purpose and because a sentence which meets the objective for personal deterrence for one offence will largely meet that objective for the related offences. However, it may not be possible to impose entirely concurrent sentences if there are multiple victims who suffer serious harm. On the other hand, criminal incursions separated in time, place, and purpose will generally attract cumulative sentences, particularly when there are different victims. That is because each incursion is culpable in itself and because each additional incursion demands that greater weight be given to personal deterrence. Some concurrency may nonetheless be ordered because there comes a point when to add yet another cumulative sentence will not further advance any of the objectives of sentencing.
[2] Warner v The King [2020] SASCA 142.
Even though sexual offending against multiple victims may be the product of deep psychosexual dysfunction, the law is concerned to vindicate the violation of the physical integrity and emotional welfare of each individual victim. For that reason there is little room for concurrent sentences other than to recognise that the limits of a proportionate sentence have been reached.
Discussion
The first thing to observe, particularly given Mr Russell’s initial denials, is that he was fortunate to receive the maximum reduction, for his guilty plea and cooperation, of 25 per cent in respect of the offending against his nieces. The reduction is more understandable, for reasons which I have already mentioned, in respect of his granddaughter.
Dealing with the individual offences, the offending against MB is, as the Judge rightly concluded, particularly egregious having regard to MB’s young age when it commenced and the period of time over which it continued. An upward variation from the standard in R v D was warranted. Mr Russell was fortunate to receive no more than 12 years. The offending against HB warranted a sentence of at least 10 years, two more than the eight years notionally imposed by the Judge. The offending against Mr Russell’s granddaughter AH, given her very young age and the nature of the breach of trust including persuading his daughter from investigating the behavioural indications of abuse, warranted a sentence of 12 years, twice that imposed by the Judge. There was little room to reduce the sentence imposed for the offending against AH on the ground that there was no vaginal penetration. The offence of indecent assault, having regard to the need to sentence against the background that it was not the first offence against that niece, warranted a sentence of not less than two years.
The serial predation by Mr Russell on his nieces, and finally his granddaughter, constituted very grave offending both because of his persistent pursuit of his own gratification and because of the familial distress he caused.
Allowing a 25 per cent reduction for each of those offences despite the leniency that allows with respect to the offending against the nieces, the notional overall sentence if they were to be accumulated would be 28 years or close thereto. The Judge’s reduction for totality, 14 years, halved the sum of the individual notional sentences. An unexplained reduction of this magnitude for sentences imposed for sexual offending against multiple victims which would generally warrant cumulative sentences cannot be justified. That is all the more so given the leniency allowed in setting the notional sentences.
The sentence imposed by the Judge is indisputably manifestly inadequate. Permission should be granted to correct the error for several reasons. First the Judge’s remarks fail to identify any reason for fixing notional sentences for the offending against AB and AH which fall below the guidelines given in R v D, and no basis to do so is apparent on the face of the relevant circumstances. In themselves they are manifestly inadequate. Secondly, there is no explanation for the high degree of concurrency of all sentences, nor is any basis for it apparent in the relevant circumstances. Thirdly the manifestly inadequate final sentence, and the absence of any indication of the concurrency the Judge had in mind failed to acknowledge that offences were committed against four individual young children. Fourthly, it is necessary to emphasise the importance of addressing the offending against each victim and to illustrate how a proportionate sentence might be achieved.
Re-sentencing
In sentencing for offending against many victims it may often be pragmatic to commence with the more serious offences which will attract higher sentences. In this case the offending against MB and AH are the more serious offences. A sentence greater than the R v D guideline is required for the offences of maintaining a sexual relationship against MB for the reasons given in paragraph [38]. I would adopt a starting point of 13 years reduced to 10 years and six months for his guilty plea. For the reasons also given in paragraph [38] I would adopt a starting point of 12 years for the offence against AH reduced to nine years for his guilty plea. I would adopt a starting point of 10 years for the offending against HB but reduce it to eight years for his guilty plea. I would adopt a starting point of two years for the offence against AB but reduce it to 19 months for his guilty plea. I would order that the sentences for the offending against AB and HB be served concurrently as between themselves but commence two years and six months after the commencement of the sentence imposed for the offending against MB. I would order that the sentence imposed for the offending against AH commence at the expiration of the sentence imposed for the offending against HB and AB.
The total of those sentences is 19 years and six months. The degree of concurrency which I would impose is calculated to maintain a proportionate sentence which adequately punishes and deters but at the same time recognises that the sentence will bring Mr Russell close to the end of his life. I would fix a non‑parole period of 16 years, one month and two weeks.
In R v Ellis, the Court said:[3]
84It has been said that old age, particularly when combined with ill-health, may constitute a basis on which the court, in the exercise of mercy, may impose a sentence which is significantly shorter than might otherwise be the case. In some circumstances, general deterrence may need to surrender some ground to the need to exercise mercy and take account of the possibility that the offender might not live to be released. However, courts recognise that advanced age must be considered in the context of the broad objectives of sentencing and that general deterrence is not an irrelevant consideration in a case in which advanced age is a factor justifying significant leniency.
85This Court has considered the issue of how to sentence an older offender in R v Liddy (No 2). In that case, Mullighan J said:
The cases clearly show that advanced age may have the effect of reducing a sentence in appropriate circumstances but it does not follow that such age necessarily has that consequence. Obviously a person in his eighties or nineties is not to be inadequately punished for serious crime, merely because of his age. It is to be expected that in such cases the effect of the sentence is that the offender will probably die in prison. Age cannot subsume all other matters to be taken into account, including the four main considerations on sentence, appropriate punishment, protection of the public, deterrence, both general and personal, and rehabilitation, although it may be said that advanced age may have an effect upon one or more of those considerations, particularly deterrence.
(Citations omitted)
[3] R v Ellis (2010) 107 SASR 94 at [84]-[85] per Sulan J (Duggan and Kourakis JJ agreeing).
Mr Russell will be 73 before he is eligible for release on parole. A sentence of the length imposed having regard to his age on release will serve the purposes of deterrence and make it practicably difficult for him to re-offend. Any greater sentence could not materially advance those sentencing purposes but would, having regard to Mr Russell’s age, amount to a sentence devoid of hope of ever living beyond the walls of his cell. I acknowledge that it means that the sentences imposed against HB and AB are largely concurrent. Nonetheless Mr Russell stands condemned for that offending by a sentence which has been separately identified and imposed. Moreover, the extent to which that sentence has added, albeit marginally, to the overall sentence is apparent on the face of the orders.
LIVESEY P:
Introduction
This Crown appeal, like the case of Warner v The King,[4] raises the application of the sentencing standard in R v D when sentencing for child sexual offences involving unlawful sexual intercourse by offenders in positions of trust and authority.[5] It also raises issues concerning the application of the principles of concurrency and totality where the sentencing judge must sentence for offending involving the sexual abuse of multiple victims.
[4] Warner v The King [2022] SASCA 142.
[5] R v D (1997) 69 SASR 413.
Although the Director challenged the approach taken to concurrency in Edmonds (a pseudonym) v The Queen,[6] that challenge should be rejected. In my opinion, though one of the notional sentences imposed by the sentencing judge was too low and the overall sentence was low, I am not satisfied that the starting point of 14 years is so manifestly inadequate as to require that this Court grant permission to appeal.
[6] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 (Livesey P, Doyle and David JJA).
In these circumstances, I would dismiss the Director’s application for permission to appeal.
The sentence imposed
The respondent pleaded guilty to three counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), for which the maximum penalty was in each case life imprisonment. The respondent also pleaded guilty to one count of aggravated indecent assault, contrary to s 56 of the CLCA, for which the maximum penalty at the time of sentencing was 10 years’ imprisonment.
The circumstances of the offending and the offender
I gratefully adopt the recitation by the Chief Justice of the circumstances of the offending, together with the profound harm caused to the victims and their families as revealed by their victim impact statements. These are difficult to read. They were not overlooked by the sentencing judge.
Likewise, I gratefully adopt the Chief Justice’s recitation of the personal circumstances of the offender.
The first three victims were nieces of the respondent, the fourth his grand‑daughter. Without intending any disrespect to the victims, the circumstances of the offending may be briefly outlined so as to explain my conclusions.
The offending against MB commenced when she was seven years and continued for around seven years. It occurred regularly, every time she stayed with the respondent. It generally comprised procuring gross indecency (her masturbating him) as well as unlawful sexual intercourse insofar as the respondent touched MB’s clitoris and inside her labia majora. On one occasion, he performed cunnilingus. There were many indecent assaults involving the touching of the breasts and the outer area of the vagina.
The offending occurred when NB was not yet 14 years and for this the sentencing judge start with a notional sentence of 12 years.
The offending involving AB occurred on one occasion. She was 13 years of age and it involved removal of her bra and massaging the inside and outside of her thighs. Apart from the indecent assault, the respondent admitted to an uncharged act of touching AB on the vagina on one occasion. For this offending the sentencing judge imposed a notional sentence of 14 months’ imprisonment.
The offending involving HB occurred on five occasions during a three-week period when she was eight years. It involved procuring an act of gross indecency (her masturbating the respondent) as well as unlawful sexual intercourse insofar as he touched her clitoris and inside the labia majora. The victim was under the age of 14 and for this offending the sentencing judge imposed a notional sentence of eight years.
Finally, over a period in excess of two years commencing when she was only four years, the respondent’s grand-daughter AH was subjected to frequent sexual abuse which involved procuring an act of gross indecency (her masturbating the respondent as well as herself), unlawful sexual intercourse (she performed fellatio upon him on one occasion) as well as indecent assaults involving touching to the genitals, breasts and bottom. A photograph was also taken of AH’s vagina by the respondent (this was not the subject of any charge).
For this offending, the sentencing judge started with a notional sentence of six years’ imprisonment.
The notional sentences imposed
The sentencing judge sentenced the respondent in the following way, making allowance for the respondent’s pleas of guilty:
Count/ Victim
Offence
Maximum Penalty
Reduction for plea
Starting Point
Notional Sentence
1/MB
MUSR[7]
Life
25%[8]
12 years
9 years
2/AB
Agg. Indecent Assault[9]
10 years
25%
14 months
10 months 15 days
3/HB
MUSR
Life
25%
8 years
6 years
4/AH
MUSR
Life
25%
6 years
4 years 6 months
[7] Maintaining an unlawful sexual relationship, contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA).
[8] Sentencing Act 2017 (SA) s 40(3)(a).
[9] Contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).
As the Chief Justice has explained, when accumulated, the total of these notional sentences was 20 years, four months and 15 days. Explicitly applying the approach in Edmonds (a pseudonym) v The Queen, the sentencing judge appears to have made the sentences partially concurrent when reducing the overall head sentence to 14 years when arriving at a single sentence under s 26(1) of the Sentencing Act 2017 (SA).
Pursuant to s 47(5)(d) of the Sentencing Act 2017 (SA), the judge fixed the mandatory minimum non-parole period at 11 years, two months and 12 days (four-fifths of the head sentence).
The sentence and non-parole period were ordered to commence on 14 July 2021, when the respondent was taken into custody.
The relevant sentencing principles
I will not repeat the review I undertook in Warner v The King regarding the nature and application of the R v D sentencing standard.[10] Similarly, it is not necessary to repeat those aspects of my reasons concerning concurrency, totality and proportionality.
[10] R v D (1997) 69 SASR 413; Warner v The King [2022] SASCA 142.
I agree with the reasons of the Chief Justice concerning the wide discretionary exercise involved when sentencing for multiple serious offences raising difficult questions as to totality and concurrency. I likewise generally agree with the Chief Justice’s description of the relevant principles, particularly the room for using concurrency when ensuring that a proportionate sentence is imposed.
As may appear from my reasons in Warner v The King, I regard both totality and concurrency as tools available to be used by a sentencing judge in the exercise of the broad sentencing discretion when ensuring that a proportionate sentence is imposed. I reject the challenge made to Edmonds (a pseudonym) v The Queen.[11]
[11] Edmonds (a pseudonym) v The Queen [2022] SASCA 11.
The approach of the sentencing judge
In my view, there can be no complaint about the approach of the sentencing judge insofar as she identified individual sentences as starting points, as is now required by s 26(2a) of the Sentencing Act 2017 (SA), before invoking concurrency in order to arrive at the ultimate sentence.
Whilst it may have been appropriate to explain in a little more detail how the sentencing task was undertaken, there was no error in adopting the approach taken in Edmonds (a pseudonym) v The Queen.[12] Equally, the sentencing judge could have reduced the accumulated total of the notional sentences of 20 years, four months and 15 days on the grounds of totality. Whichever approach was adopted, the task before her Honour was to impose a sentence which was proportionate to the circumstances of the offending and the offender.
[12] Edmonds (a pseudonym) v The Queen [2022] SASCA 11.
Whilst it may be helpful in particular cases to adopt particular percentages when determining partial concurrency, there is no obligation to do so. The sentencing judge is engaged in the task of exercising a broad discretion. It is undesirable that the way in which that discretion is exercised be fettered by rules or guidelines which are neither prescribed nor stipulated by the common law or legislation.
The offending was marked by successive abuses of trust over a prolonged period, resulting in profound harm to the victims and their families. Given the circumstances of the offending and the offender, it was necessary and appropriate that a heavy sentence be imposed.
It was nonetheless also necessary to address the particular circumstances of each offending, the periods it lasted and the extent and nature of it in at least a general way, as was done in this case. This entailed addressing the extent to which it comprised unlawful “sexual intercourse” contrary to s 49(1), within the meaning of s 5 of the CLCA, or some other offending, and whether it came within the sentencing guidance provided by R v D.[13]
[13] R v D (1997) 69 SASR 413.
When one considers the careful sentencing remarks made in this case, together with the notional sentences and the ultimate overall sentence which was imposed, four features are clear.
First, and respectfully, I do not regard the notional sentences imposed in respect of counts 1, 2 and 3 as inappropriate, still less manifestly inadequate. Secondly, the notional sentence imposed in respect of count 4 was not appropriate given the period and range of conduct involved. That notional sentence was too low. Thirdly, the method adopted of accumulating the notional sentences before using concurrency to arrive at the ultimate sentence cannot be criticised. Fourthly and finally, however, I would have been inclined to impose a slightly higher overall sentence. That follows in consequence of my view that the notional sentence for the fourth count was too low.
Permission to appeal sentence
As the authorities make plain, however, identifying inadequacy, even manifest inadequacy does not, of itself, justify granting the Crown permission to appeal.[14]
[14] The authorities are discussed in R v Yaroslavceff [2022] SASCA 123, [29]-[32], [61] (Livesey P and David JA), [69]-[73] (Doyle JA).
In my opinion, it has not been demonstrated that the sentence is so manifestly inadequate as to justify the grant of permission to appeal.
Conclusion
In these circumstances, I would refuse the Director permission to appeal sentence in this matter.
DOYLE JA: The facts and circumstances relevant to this application by the Director of Public Prosecutions for permission to appeal against sentence have been set out in the reasons of the Chief Justice. I agree with, and adopt, his summary of the offending, its impact upon the victims and their families, and the respondent’s personal circumstances.
There is no doubt that the offending was very serious and required a lengthy sentence of imprisonment. The issue is whether the sentence ultimately imposed by the sentencing judge (14 years imprisonment after 25 per cent reductions in the individual head sentences for the respondent’s early pleas of guilty) was manifestly inadequate; and, indeed, so manifestly inadequate as to warrant a grant of permission to appeal to permit this Court to intervene in order to maintain adequate sentencing standards.
For the reasons which follow, I do not agree with some of the criticisms of the sentencing judge’s approach made by the Chief Justice. While I accept that the sentence ultimately imposed was low, I do not think that the disparity between the sentence which was imposed and that which ought to have been imposed was such as to require the intervention of this Court on a Crown appeal against sentence.
Consideration
These reasons should be read in conjunction with my contemporaneously published reasons in Warner v The King.[15]I refer in particular to the observations I made in those reasons in relation to the rationale for the standard in R v D,[16] its application to individual instances of child sexual abuse offending, and the role that concurrency may play when sentencing an offender for multiple instances of such offending.
[15] Warner v The King [2022] SASCA 142.
[16] R v D (1997) 69 SASR 413.
Against that background, it is appropriate to commence my consideration of the sentence imposed below by addressing the adequacy of the individual starting points identified by the sentencing judge.
The individual head sentences
As mentioned, the personal circumstances of the respondent have been summarised in the reasons of the Chief Justice. His Honour has also referred to the victim impact statements relied upon at sentencing.
As to the circumstances of the offending against each of the four victims, the sentencing judge set these out in some detail in her reasons. They have been adequately summarised for present purposes in the reasons of the Chief Justice.
After describing the abhorrent nature of the respondent’s offending, the devastation it caused, and the need to ensure an adequate sentencing response, the sentencing judge referred to the sentencing standard in R v D:
In relation to counts one, three and four, the sexual offences particularised include acts of unlawful sexual intercourse with a child under the age of 14 and you abused a position of trust in committing these offences. The sentencing standard in the decision of R v D is therefore relevant and applicable to the offending in counts one, three and four, but for the reasons that follow, some degree of flexibility in the application of that standard should be applied to counts three and four.
As outlined in my reasons in Warner v The King,[17] the judge was right to emphasise the flexibility that is appropriate in the application of the sentencing standard in R v D. In each case it will be necessary to have regard to considerations such as the nature and frequency of the offending; the duration of the period over which it occurred; the age of the victim; the impact of the offending upon the victim; and the personal circumstances of the offender.
[17] Warner v The King [2022] SASCA 142 at [123] (Doyle JA).
The critical passage from the sentencing judge’s remarks, in which she then proceeded to identify the starting points for each of the offences, has been set out in full in the Chief Justice’s reasons.
The victim of count 1 was MB. The sentencing judge explained that the offending in this count was particularly egregious because it occurred over a seven year period, commencing when MB was only seven years of age, and was so frequent that MB could not recall how many times it happened. The judge identified a starting point of 12 years imprisonment for this offence, reduced by 25 per cent to nine years imprisonment on account of the respondent’s plea of guilty.
The sexual acts comprising this offending consisted largely of indecent touching of the victim’s genitals and breasts, but also included an occasion when the respondent caused MB to masturbate him, and an occasion when he performed cunnilingus on the victim. While most of the sexual acts involved in this offending were not of the most intrusive or depraved kind, the frequency and duration of the offending and MB’s young age warranted a starting point of 12 years imprisonment. In my view, the starting point identified by the judge for this offence was appropriate.
The victim of count 3 was HB. As the judge explained, the offending in count 3 occurred over a three-week period and involved five or six occasions of sexual activity, including digital penetrative activity, touching the victim’s vagina, and masturbation of the respondent. The judge reasoned that ‘[t]he shorter duration of the offending and the number of occasions on which it occurred is a basis to apply a greater degree of flexibility in the application of the standard in R v D.’ Her Honour indicated a starting point of eight years, reduced by 25 per cent to six years on account of the respondent’s plea of guilty.
While it is true that the sexual acts were serious, and the victim was again very young (eight years of age), the judge was right to emphasise the relatively limited duration and number of sexual acts. In my view, the judge’s starting point for this offence was appropriate. Indeed, the Director does not challenge the adequacy of this starting point.
I acknowledge that the duration of the offending in R v D itself was only about two months. But I do not think that this is indicative of any inadequacy in the starting point identified by the judge. As explained in my reasons in Warner v The King, the limited duration of the offending in R v D was a reason (in addition to the defendant’s cooperation and guilty plea) for the Court in that case suggesting that an ultimate head sentence of six years would have been appropriate even if the relevant sentencing standard (being 10 years imprisonment for offending against a child older than 12 years of age) had been applicable.
The victim of count 4 was AH. The sentencing judge acknowledged that this offending involved a very young child, the respondent’s granddaughter, and occurred against a background of offending against other family members. Her Honour described the offending as involving a monstrous abuse of the trust his daughter had shown in him by entrusting her own daughter to his care. However, as the judge then observed, ‘the offending in count 4, as egregious as it was, did not involve acts of unlawful sexual intercourse other than the single occasion of fellatio, an allegation not made by AH, but a sexual act admitted by [the respondent] in [his] interview.’ The judge indicated a starting point of six years imprisonment, reduced by 25 per cent to four years six months imprisonment for the respondent’s plea of guilty.
The offending the subject of this count appears to have occurred over a period of about two years. Whilst it is true that the sexual acts were not of the most serious kind, the particularly young age of the victim and the gross breach of trust involved in the offending, together with the duration of the offending suggest to me that the judge’s starting point of six years was too low. A starting point of about at least eight years would have been appropriate.
Finally, I mention count 2, the aggravated indecent assault of AB. The offence occurred when AB was 13 years of age, and involved the respondent massaging the victim’s thighs near her genitals. The judge identified a head sentence of 14 months imprisonment, reduced to 10 months and 15 days after a reduction of 25 per cent for the respondent’s plea of guilty. The Director did not challenge the adequacy of this head sentence. Even having regard to the uncharged act which formed part of the relevant background, I consider that this head sentence was appropriate.
In summary, I consider that the sentencing judge’s starting points for the individual offences were generally appropriate. Her Honour explained why the sentences imposed were at the levels indicated. The starting points for some of them might have been a bit higher, and in the case of count 4 probably should have been higher. But that is not to say that any of the individual starting points was manifestly inadequate. It is not necessary for me to reach a conclusion in this respect because the issue on this appeal is whether the ultimate sentence imposed was manifestly inadequate (and indeed, so much so that it is appropriate for this Court to grant the Director permission to appeal). This issue requires consideration of the sentencing judge’s approach to the overall sentence imposed, and her Honour’s use of partial concurrency to ensure an ultimate sentence that was proportionate to the respondent’s overall offending and personal circumstances.
The proportionality of the ultimate head sentence imposed
Victim
Starting point
After reduction for plea
MB
12 years
9 years
HB
8 years
6 years
AH
6 years
4 years 6 months
AB
1 year 2 months
10 months 15 days
Cumulative total
20 years 4 months 15 days
Reduced for concurrency
14 years
Non-parole period
4/5 of head sentence
11 years 2 months 12 days
The individual starting points identified by the sentencing judge were as follows:
The sentencing judge noted that the accumulation of each of the identified sentences would result in a head sentence of 20 years, four months and 15 days imprisonment. Recognising that this would be a disproportionate sentence, the judge also noted the defence submission that a reduction for totality would be appropriate. However, applying the reasoning of this Court in Edmonds (a pseudonym) v The Queen,[18] her Honour preferred an approach that involved applying partial concurrency to the individual sentences. Her Honour explained:
In my view, there is an overlap in the matters relevant to the sentencing exercise in respect of each of the four offences to which you have pleaded guilty insofar as the offences are all of a similar nature, although the degree and frequency and extent of the sexual acts differs as between each victim, and all involve your abuse of your position of trust in a familial setting, either as an uncle or a grandfather, and all involve sexual abuse in your own home for your own sexual gratification.
In these circumstances, the imposition of a significant sentence of imprisonment in relation to counts 1, 3 or 4 would assist in achieving some of the sentencing objectives intended to be achieved by the sentence for the remainder. Although the interconnection between your offending is insufficient to characterise your offending as a single course of conduct there is, in my view, sufficient reason to apply partial concurrency to the sentences I have imposed.
In Edmonds, the Court said that the broader view of the scope of the operation of the principle of concurrency, as articulated by Kourakis J, as he then was, in R v Copeland (No 2) has been adopted in subsequent decisions of the Court of Criminal Appeal. In R v W, PL it was recognised that this broader approach to concurrency may extend to sexual offending against multiple victims. However, the Court in Edmonds sounded a caution that it will remain important in such cases to ensure that the sentence ultimately imposed adequately reflects the violation of each of the victims and this will ordinarily operate as a significant limit upon the extent of the allowance for concurrency and may, in some cases, militate against any allowance at all.
I will allow a degree of concurrency on the basis of the interconnection identified. As a result, your head sentence will be 14 years. The non-parole period must be at least four-fifths of the head sentence. I impose a non-parole period of 11 years, two months and 12 days, which I backdate, that is, the head sentence and the non-parole period will be backdated to 14 July 2021 when you were taken into custody.
[18] Edmonds (a pseudonym) v The Queen [2022] SASCA 11.
In my view, her Honour accurately summarised, and appropriately invoked, the broader view of the scope for the operation of the principles of concurrency that has now been approved several times by this Court.
The issue that remains is whether the sentencing judge applied concurrency in a manner that arrived at a proportionate ultimate sentence, or whether, as the Director contends, it resulted in a sentence that was manifestly inadequate.
I acknowledge that the sentencing judge ultimately adopted something of a hybrid approach. Her Honour indicated that she allowed ‘a degree of concurrency’, without then identifying the extent of the concurrency applied in respect of each individual sentence. Rather, her Honour simply announced the ultimate head sentence of 14 years imprisonment. Whilst the record of proceedings mentions each of the individual sentences, and states that each is to be served partially concurrently with the others, it also does not identify the extent to which each of the individual sentences was made concurrent, or the start or end dates for those individual sentences. However, the record of proceedings does state the ultimate head sentence of 14 years imprisonment (together with its start date).
In the circumstances, it can be inferred that the judge ultimately imposed a single sentence under s 26(1) of the Sentencing Act 2017 (SA), after first identifying individual starting points,[19] and then invoking concurrency to explain how she arrived at the ultimate sentence.
[19] As is now required under s 26(2a) of the Sentencing Act.
In my view, this was a permissible and appropriate approach. Indeed, it reflects the approach this Court took when resentencing the appellant in Edmonds (a pseudonym) v The Queen.[20] That said, I accept that when adopting this approach, it will generally be preferable to provide some indication of the extent of the concurrency applied in respect of each sentence. By doing so, the court will achieve the advantage of the transparency and robustness that such an approach may bring.[21]
[20] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [77]-[78] (Livesey P, Doyle and David JJA).
[21] Warner v The King [2022] SASCA 142 at [131] (Doyle JA).
It is not possible to be precise about what the sentencing judge did in this case. However, in order to test the reasonableness of the outcome achieved, it is useful to consider how the task might have been approached, using the individual sentences imposed by her Honour. It would have been logical to start with the sentence of nine years applicable to the offending against MB, given that it was the first in time and most serious offending. If each of the subsequent sentences were made partially concurrent to the extent of 50 per cent, then the ultimate sentence would have been 14 years, eight months and seven days.
As this hypothesised sentenced is only slightly more than the one ultimately imposed by the sentencing judge, it can be concluded that the effect of the sentence imposed by her Honour was to make the sentences for each of counts 2, 3 and 4 partially concurrent as to slightly more than 50 per cent. To my mind, this was a reasonable approach to take. As I explained in Warner v The King,[22] while it would ordinarily be difficult to justify making a second sexual offence involving a second victim more than about 50 per cent concurrent, there will often be a justification for higher levels of concurrency in respect of yet further offending, given the capacity of those earlier sentences to assist in achieving the objectives of the sentencing exercise. In my view, such an approach adequately reflects the fact that there were multiple victims.
[22] Warner v The King [2022] SASCA 142 at [127]-[129], [165] (Doyle JA).
Conclusion
In summary, I am not satisfied that the sentencing judge fell into appellable error in her invocation or application of the principles of concurrency in arriving at a proportionate ultimate sentence. The head sentence for count 4 was low, and perhaps even manifestly inadequate. However, bearing in mind the 25 per cent reduction for the appellant’s plea of guilty, and the scope for partial concurrency, I am not satisfied that the disparity between the aggregate sentence which was ultimately imposed, and that which ought reasonably to have been imposed, would be sufficient to warrant a grant of permission to appeal to as to maintain adequate sentencing standards. [23] Nor do I think that the application for permission to appeal raises any other point of principle that warrants a grant of permission to appeal.
[23] R v Yaroslavceff [2022] SASCA 123 at [29]-[32], [61] (Livesey P and David JA), [69]-[73] (Doyle JA), and the authorities referred to therein.
For these reasons, I would refuse the Director’s application for permission to appeal.