R v Seymour (a pseudonym) - [2024] SASCA 41

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v SEYMOUR (A PSEUDONYM)
[2024] SASCA 41
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David)
4 April 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Crown application for permission to appeal against sentence.
The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
On 3 October 2023, the respondent was sentenced in the District Court. The sentencing judge commenced with a starting point of six years, which was reduced by five per cent on account of a plea of guilty. In sentencing, the judge indicated that this case was not one that involved an egregious breach of trust. The resultant head sentence was five years, eight months, and 13 days imprisonment. The judge fixed a non-parole period of three years.
The three grounds of appeal were that the sentencing judge erred in his consideration and application of the principles articulated in R v D (1997) 69 SASR 413, that the judge erred in his determination of the objective seriousness of the offence, and that the sentence was manifestly inadequate.
Held (by the Court), granting permission to appeal, allowing the appeal, and resentencing the respondent:
1. R v D is applicable as a guiding authority even if there was no formal position of trust.
2. The sentencing judge understated materially the objective seriousness of the offending.
3.Given the guidance that R v D provides in a case such as this, where the complainant’s vulnerability to and dependence on the respondent was broadly comparable to a formal relationship of trust, the starting point of six years was manifestly inadequate.
4.Adopting a starting point of nine years’ imprisonment and allowing a discount of five per cent for the plea of guilty, the respondent is resentenced to imprisonment for eight years, six months and 19 days, with a non-parole period of five years and six months.

Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v Chesterman [2017] SASCFC 31; R v D (1997) 69 SASR 413; R v Dyett [2023] SASCA 41; R v Kelly [2023] SASCA 22; R v Lian [2023] SASCA 122; R v Quinn [2012] SASCFC 102; R v Williams (1990) 53 SASR 253; Warner v The King [2022] SASCA 142, considered.

R v SEYMOUR (A PSEUDONYM)
[2024] SASCA 41
Court of Appeal – Criminal: Kourakis CJ, Bleby and David JJA

THE COURT: On 1 April 2022, the respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). He was sentenced on 3 October 2023. The sentencing judge commenced with a starting point of six years, which he reduced by a discount of five per cent on account of the plea of guilty, making a head sentence of five years, eight months and 13 days. The judge fixed a non-parole period of three years.
The Director of Public Prosecutions now seeks permission to appeal against the sentence. The issues raised on the appeal are:
·whether the sentencing judge erred in his consideration and application of the principles articulated in R v D;[1]
·whether the judge erred in his determination of the objective seriousness of the offence; and
·whether the sentence was manifestly inadequate.
[1] (1997) 69 SASR 413.
Background
When the complainant was 15 years old, she and her sister were living with a friend of their mother, C. C was the partner of the respondent. Shortly after the two girls moved in with C, the relationship between C and the respondent broke down. The respondent moved into his own place.
While the respondent had been living in the house, he had acted flirtatiously towards the complainant and encouraged her to act in a similar manner. After he moved out, the complainant would visit him. On occasion she would skip school to go to his place and smoke marijuana.
The relationship between the complainant and C broke down and the complainant became homeless. The complainant moved in with the respondent in about May or June of 2005, approximately two or three weeks prior to her sixteenth birthday. She intended to stay with the respondent for a short period of time until she found another place to stay.
The respondent and the complainant commenced sexual activity at C’s house, before the complainant moved to the respondent’s house. This activity consisted of kissing and fellatio a couple of months prior to the complainant turning 16. About a month after that, they commenced having penile-vaginal sexual intercourse.
The first occasion occurred at around the time of the complainant’s sixteenth birthday, but when she was still 15 years old. The respondent was 39. On this occasion, the respondent had provided the complainant with cannabis. She went to her bed to rest. Shortly after that the respondent came into her bedroom and lay on top of her. The complainant said, ‘stop, I don’t want to’ and ‘get off me’. The respondent forced the complainant’s arms above her head, removed her pants and underwear and inserted his penis into her vagina. He had penile-vaginal sexual intercourse with the complainant until he ejaculated. He then got up and started laughing.
Sexual intercourse continued between them on a daily basis while the complainant was between the ages of 16 and 17 years. This would occur even if the complainant did not want to. The complainant described the respondent as pinning her down in order to facilitate intercourse. She acquiesced in order to get it over with.
While the complainant was 16, the respondent introduced another adult, H, into the unlawful sexual relationship. There were occasions when they all engaged in sexual activity together. The respondent fell to be sentenced for having sexual intercourse with the complainant in the presence of H on about three occasions. He provided drugs and alcohol to them both and filmed some of the sexual activity. On those occasions he had penile-vaginal intercourse with the complainant, and she fellated and masturbated him.
On one occasion, a camera had been set up when H attended at the respondent’s address. H agreed to make a homemade sexual video depicting the respondent and the complainant. H’s evidence was that when she visited the complainant and the respondent, they would regularly walk around naked and that she would see the complainant fellate the respondent and/or engage in penile‑vaginal intercourse with him. She would also see the complainant masturbate herself or masturbate the respondent.
The respondent also tried to get a friend of the complainant to engage with them in a ‘threesome’. The friend distanced herself and moved away.
The respondent filmed himself having sexual intercourse with the complainant on a number of occasions. Those occasions included sexual intercourse (penile-vaginal intercourse and fellatio) in the presence of H.
Police found media files depicting the respondent engaged in penile-anal sexual intercourse with the complainant when she was about 16 years old. The complainant was able to identify one media file depicting the respondent engaging in digital vaginal sexual intercourse with her at a time when she was 16 years old or younger.
The respondent would also take the complainant to a different property and have her pose naked for photographs. The complainant would engage in sexual acts with sex toys. Most of the photographs were taken when she was aged between 16 and 18. The respondent directed her what to do and how to do it. The complainant was able to identify seven media files that depicted her inserting objects or sex toys into her vagina or masturbating herself at a time when she was approximately 16 years old.
The respondent threatened to disseminate videos of what he was capturing should she leave him.
The complainant and the respondent remained in a relationship for about 12 years. The complainant became pregnant at approximately 21 years of age and gave birth to the respondent’s daughter. At that time she began to reconsider and evaluate the relationship and began to avoid the respondent. However, the respondent told her that if she were to leave him and take their daughter, he would come after her and her family.
The complainant’s evidence was the respondent spoke of torturing her family members in front of her and that she, the complainant, did not want things to happen to her family and friends. The respondent told the complainant that he used to work as a forensic cleaner and a cleaner at a police station. He said that he knew people high up in the police and other government organisations and if the complainant ever attempted to get help, he would know and find out where she was. He said he had made several people disappear. He talked about cleaning up bodies that had gone through compressors and about what chemicals to use to remove evidence and bodies. He said that he had bombs and guns and if the complainant went anywhere, he would have people watch her.
To be clear, these statements by the respondent occurred after the unlawful sexual relationship that is, after the complainant had turned 17.
On one occasion, when the complainant was around 21 years of age, she awoke to find the respondent and another male on the bed. The respondent engaged in penile-vaginal intercourse with the complainant who pulled a pillow over her face. The other male said that it did not feel right and that it shouldn’t be like this. The respondent said it was how she wanted it and it was her fantasy. The unknown male then engaged in penile-vaginal intercourse with the complainant.
At about the age of 26, the complainant began to sleep in the spare room. In December 2017, she came home from a party. The respondent attempted to have sexual intercourse with her, but she rejected him. The respondent became angry and told her to leave. She said she would not leave as the child was asleep and she was not going to leave her. She contacted her sister and asked her to call the police.
The complainant gave a victim impact statement, describing the effect of the offending on her mental health. She is affected by post-traumatic stress disorder, anxiety, depression and stress. She has struggled to maintain healthy relationships. Certain sexual acts bring her flashbacks and trauma.
At the time of sentencing, the respondent was 58 years old. He had two previous convictions for dishonesty offences and a number of driving offences and drug offences. Most of that offending occurred between 1984 and 2003, with some firearm offences recorded from 2010.
The respondent did not give an explanation for his offending against the complainant. He said it was matter of ‘poor judgement’ on account of drugs and alcohol. There was no psychological report. The respondent apologised through his counsel for his offending and acknowledged that he caused the complainant harm. He said he felt ashamed. He tendered letters of support from his mother and older son, and from a family friend. He had provided some assistance to members of his family. He said that he had a disadvantaged childhood, was home schooled and changed schools on a number of occasions before being expelled in year 10 for fighting.
The respondent’s father abused alcohol and subjected him to extreme childhood discipline, including by the use of electric cattle prods and detaining him in a 45-gallon drum. His father bashed him in the course of him trying to protect his mother from his father’s domestic violence. His father also grabbed him on the genitals.
The prosecution’s submissions on sentence
At the sentencing hearing, the following exchange occurred between the prosecution and the sentencing judge about the relevance of this Court’s decision in R v D:[2]
[Prosecutor]: Whilst this is not a matter that would attract the tariff set out in R v D because the defendant was not in a traditional position of trust or authority, I refer your Honour to a decision of R v Chesterman [2017] SASCFC 31. Now, that matter is different factually, in that the defendant in that matter was 59 years old and the victim was 13 with an intellectual disability; but the defendant lived on the corner of the victim’s street, fostered a friendship with him and used that to groom and then offend.
His Honour:       [Y]ou can assume that I’ll sentence on the basis that there is a power imbalance. [Counsel for the prisoner] has conceded as much.
[Prosecutor]:       Yes.
His Honour:       The age difference and the general surrounding circumstances is such that it’s obvious for everyone to see that.
[Prosecutor]:       Yes. Essentially, what I was going to be submitting is that whilst the tariff doesn’t apply, I would say it comes reasonably close because of those factors; being the age gap, the way in which he met the victim, the fact that she was obviously very vulnerable, without parental supervision and was homeless, she had been kicked out of [C’s] home, the duration of the offending, the nature of the offending that took place between the parties and third parties.
[2] (1997) 69 SASR 413.
The approach taken by the prosecutor to the applicability of R v D assumed some significance on the appeal.
The sentencing judge’s remarks
In the course of sentencing the respondent, the sentencing judge made several remarks that featured in submissions on the appeal. With respect to the relevance of R v D,[3] the judge said as follows:
During the course of submissions the prosecution accepted that the guideline established in the case of R v D[4] does not apply to this case on account of the absence of a breach of trust. This concession is well made, with respect. However, I do not lose sight of the disparity in age, some 25 years, and the degree of vulnerability which your victim experienced at the commencement of the relationship, together with the length of time over which the offending took place.
(Footnote in original)
[3] (1997) 69 SASR 413.
[4] (1997) 69 SASR 413.
It will be necessary to return to this statement. As recorded above, the prosecutor had said that ‘whilst the tariff [referring to R v D] doesn’t apply, I would say it comes reasonably close’.
On the age gap and the complainant’s vulnerability, the judge said:
Whilst the prosecution points to matters such as the age gap, the degree of vulnerability which you exploited to some extent at least at the commencement of your offending, it is to be borne in mind that the unlawful sexual activity commenced very close to the 16^th birthday of the victim, meaning that your victim was not a child of particularly tender years.
As to the prosecution’s reliance on R v Chesterman,[5] the judge said that he considered that to be a ‘very different case’, having regard to the intellectual disability of the 13-year-old victim and the age of the offender in that case, being 59. Nevertheless, he continued:
In any child sexual offending there will always be a power imbalance by the very nature of the offender being an adult and the victim being a child. This case is not one that involves an egregious breach of trust or a power imbalance such as that dealt with by the Full Court in Chesterman.
In making these observations I am not minimising the seriousness of this offending. Plainly, it was a lengthy course of conduct, involving a multiplicity of unlawful sexual acts against a background of manipulative behaviour.
[5] [2017] SASCFC 31.
The judge went on to note that the respondent had made a ‘fulsome’ acceptance of wrongdoing and a meaningful apology through his counsel. He imposed the sentence set out above.
The appeal
The complaints of process and outcome error are interconnected. It is helpful to consider the correct approach to sentencing in this case by reference to the sentencing judge’s statements that, ‘R v D[6] does not apply to this case on account of the absence of a breach of trust’, and that this case ‘is not one that involves an egregious breach of trust or a power imbalance such as that dealt with by the Full Court in Chesterman’. For the reasons that follow, these statements risked artificially confining broadly applicable authorities to their facts. They also risked treating R v D as establishing a ‘ceiling’ of seriousness requiring other factual scenarios to be treated as necessarily less serious.
[6] (1997) 69 SASR 413.
In R v D,[7] the appellant was the stepfather of the victim, who was 13 at the time of the offending. The appellant sexually abused the victim in a number of ways, on an almost daily basis, over a two-month period. The Full Court considered that there were ‘unusually powerful mitigating circumstances’ in that case and ultimately reduced the head sentence to five years’ imprisonment, with a non-parole period of three years and six months.[8] However, the ongoing significance of this case lies in the Court’s review of sentencing standards for future application. Doyle CJ expressed that review in the following terms:[9]
This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. By this I mean cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority.
[7] (1997) 69 SASR 413.
[8] R v D (1997) 69 SASR 413 at 423 (Doyle CJ, Bleby J agreeing).
[9] R v D (1997) 69 SASR 413 at 423.
Doyle CJ expanded on this emphasis of ‘breach of trust’:[10]
Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.
It appears that the sexual abuse of children by persons in a position of trust is quite widespread. It may not be occurring more often than it did in the past. It may well be that it is now being detected more often than it was. Be that as it may, the offences that are involved come before the courts with disturbing frequency. It is for those reasons that I consider that the court should increase, to a moderate degree, the level of penalty imposed for such offences.
[10] R v D (1997) 69 SASR 413 at 423.
It was from this reasoning that the Court indicated that offences involving unlawful sexual intercourse with children under 12 years of age, where there are multiple offences committed over a period of time, should attract a starting point of about 12 years’ imprisonment. It further indicated that where the child was over 12 years of age, the starting point should be 10 years’ imprisonment.[11]
[11] R v D (1997) 69 SASR 413 at 424.
There has never been any doubt that this case was specifically concerned with cases where the offender was in ‘a position of trust and authority’. It remains good law and continues to be applied on a regular basis.

Contemporary understandings of the potential for and nature of imbalanced power relationships between adults and children have continued to develop and the courts have responded to these understandings. In R v Dyett,[12] the unlawful sexual relationship commenced when the respondent was 21 and the victim 15, nearly 16. They had met at a karaoke evening at a pub and commenced a sexual relationship soon after. The sentencing judge found that the respondent was not in a position of trust with respect to the victim, but that he had exploited the age gap and the victim’s immaturity.[13]
[12] [2023] SASCA 41.
[13] R v Dyett [2023] SASCA 41 at [22].
The prosecution at sentencing had agreed with a submission by the respondent that there was no breach of trust and that this was not a standard case falling within R v D. This Court accepted that this was not a case of an abuse of a position of trust and authority and accepted that it was not a case where the starting point should have been 10 years’ imprisonment.[14]
[14] R v Dyett [2023] SASCA 41 at [39]-[40].
Nevertheless, this Court also said the following:[15]
It is well-recognised that the sentencing standard in R v D applies to sexual offending against children involving unlawful sexual intercourse by offenders in positions of trust and authority. That is so regardless whether the position of trust and authority is an informal one, such as where it is the product of a large disparity in age.[16] Whilst the standard has been applied on many occasions to child sexual offending where an ongoing course of conduct is involved,[17] the common feature is that the offenders have abused positions of trust and authority.[18]
(Footnotes in original)
[15] R v Dyett [2023] SASCA 41 at [38].
[16] R v Chesterman [2017] SASCFC 31, [46] (Doyle J, with whom Kelly and Parker JJ agreed): “there is often some level of abuse of trust even …where the adult offender does not hold any formal position of trust… The adult will often have assumed a position of authority and influence.”
[17] R v Quinn [2012] SASCFC 102, [29]-[32] (Gray J, with whom Anderson and Stanley JJ agreed).
[18] Warner v The King [2022] SASCA 142, [20] (Kourakis CJ), [79] (Livesey P); [118] (Doyle JA).
The Court in Dyett recognised that a position of trust and authority capable of attracting the sentencing principles articulated in R v D may arise informally, such as by a marked disparity in age. It is equally necessary to consider all the integers of the relationship.
In R v Chesterman,[19] which the sentencing judge in the present case distinguished, the respondent was convicted of two counts of unlawful sexual intercourse with a person under 14 and aggravated indecent assault. That offending occurred over a background of similar offending over a period of a few months. The victim was a 13-year-old boy with an intellectual disability. The respondent was 59.
[19] [2017] SASCFC 31.
The Full Court allowed the Director’s appeal against sentence. The Court accepted that the case was distinguishable from R v D, but also accepted that R v D provided ‘significant guidance’:[20]
Turning to the present case, it is of some relevance that the respondent did not hold any formal position of trust and authority. While the present case is thus distinguishable from R v D, the standard set in that case nevertheless provides significant guidance as to the appropriate penalty in the present case.
Further, in the context of offending by an adult against a child, there is often some level of abuse of trust even in circumstances where the adult offender does not hold any formal position of trust. In a case, such as the present, where there has been a history of interaction between the child victim and adult offender, the child will often have developed a level of trust in the adult. The adult will often have assumed a position of authority and influence. That relationship of trust is even more likely, and even more significant, in the case of an intellectually disabled child. While not intending to diminish the significance of the existence of a formal relationship of trust, there will in some cases (such as the present) be a degree of trust, authority and influence, and consequential vulnerability, that falls short of a formal relationship of trust, but which is nevertheless relevant to a defendant’s culpability. Further, and in any event, the existence of a relationship of trust is but one of the range of matters relevant to the sentence ultimately imposed.
Putting to one side the absence of any formal relationship of trust, the present case otherwise has all the features of the cases to which the sentencing standard in R v D is intended to apply. The offending was not isolated. It involved multiple offences, and while these all occurred on the one day, the offending occurred against a background of similar conduct and other evidence suggesting a sexual interest in children. There was also an element of grooming in the respondent’s conduct in his use of gifts to the victim.The present case thus gives rise to the same need for personal and general deterrence that the Court was concerned to address in R v D.
(Emphasis added)
[20] R v Chesterman [2017] SASCFC 31 at [45]-[47].
R v Chesterman provides a helpful example of how and why R v D provides authoritative sentencing guidance, in situations where sexual offending against a child has occurred in circumstances short of a formal relationship of trust, but where there is an imbalance of power through structures of social or cultural authority, influence, vulnerability and/or dependence.
Consistently with this observation, in the recent decision of R v Lian, Kourakis CJ explained:[21]
The increased severity of the guideline given in R v D was calculated to protect children from the long-term suffering caused by the sexual offending against them by adults. That must remain the focus of sentencing all such offenders. The nature and degree of the power imbalance between them, the upper end of which is the subject of the standard set out in R v D, will affect the relative severity of the sentences for sexual offending against children generally.
In cases in which the offender has been entrusted with the care of his victim general and personal deterrence and the importance of denunciation will weigh strongly against any mitigation of the standard. Conversely, where that aggravating circumstance is not present, and there is only slight disparity in chronological and emotional maturity, the offender’s previous good character and prospect for rehabilitation may allow more room for leniency.
However, there cannot be two distinct and unrelated categories of sentences for sexual offending against children; one for offenders in formal or informal positions of trust, and another for offenders who do not occupy these positions. To ensure coherence in sentencing, and in order not to undermine the protection of children against all adult predators, a proportionate relationship between the categories must be maintained. Sentences for all sexual offending against children will necessarily be fixed at a point along a continuum of sentences calibrated to reflect the particular offences, and the applicable maximum penalty, and the aggravating and mitigating circumstances of each case.
[21] [2023] SASCA 122 at [101]-[103].
Lian was published after the sentencing judge had sentenced the respondent in the present case. However, Lian did not establish any new principle as to the relevance of R v D when there is no formal position of trust. As was the case in R v Chesterman,[22] the aggravating circumstance of the existence of a formal position of trust was not present in Lian. However, as Kourakis CJ held, ‘its absence does not mean that the standard established in R v D can be ignored’.[23]
[22] [2017] SASCFC 31.
[23] R v Lian [2023] SASCA 122 at [105].
In Chesterman, the power imbalance was characterised by the great age disparity, the specific circumstance that the victim was under 14 (these being offences against s 49(1) of the CLCA), and the victim’s intellectual disability. The Court considered all these factors in the broader circumstances of the case and fixed a starting point of 12 years, that is, greater than the 10 years indicated in R v D.
It is strictly true that in the present case, there was no formal relationship of trust. However, that does not warrant the simplified conclusion that ‘R v D does not apply’. The cases considered above show that R v D nonetheless had an important role in providing guidance. C had assumed, however informally, a parental role in respect of the complainant. The respondent, by reason of his relationship with C, was initially in the house that was serving as the complainant’s home. That relationship enabled his actions.
When the complainant was made homeless following the breakdown of her relationship with C, she went to the respondent’s home. She was 16 years old, vulnerable and dependent on a 39 or 40-year-old man for shelter. The respondent’s actions towards her constituted a gross breach of the trust that she necessarily placed in him.
In these circumstances, R v D was applicable as a guiding authority, even if there was no formal position of trust. There was a relationship of dependence and specific vulnerability that the respondent exploited, by engaging in ongoing degrading sexual offending against the complainant, for over a year.
It is necessary to say something about the approach of the prosecutor to the applicability of R v D. As noted above, the prosecutor said that the ‘tariff’ in R v D did not apply because there was no formal position of trust. However, she also submitted that the sentence ‘comes reasonably close’ because of the various factors mentioned.
It would be preferable not to have used the term ‘tariff’. That supports the idea of a strict division between cases where R v D applies on account of a formal relationship of trust and where it does not. In doing so, it tends to diminish the role that R v D still plays by way of guidance even where there is no such formal relationship. Nevertheless, in submitting that the appropriate sentence ‘comes reasonably close’, the prosecutor was clearly still drawing on R v D for guidance in the circumstances of the case.
The judge took the prosecutor’s submission as a ‘concession’ that R v D did not apply ‘on account of the absence of a breach of trust’. For the reasons explained above, this tended to oversimplify the inquiry. The complainant had necessarily placed trust in the respondent as the partner of C and then as the provider of shelter. The respondent abused that trust.
Having said that, the judge then immediately referred to the disparity in age and the ‘degree of vulnerability’ that the complainant experienced. To this he added the presence of drugs and alcohol, the ‘degree of control’ that the respondent exercised over the complainant and the introduction of third parties to the sexual activity. These were all appropriate matters to take into account. However, by reason of their existence and the reality of the relationship of dependence and vulnerability that these matters manifested, R v D remained applicable in the sense that it provided guidance as to the appropriate sentence. The complainant’s vulnerability to and dependence on the respondent was broadly comparable.
It may also be accepted that there were factors in this case that distinguished it from R v Chesterman.[24] The respondent here was 39, not 59 and the victim a 15‑16-year-old girl, not an intellectually disabled 13-year-old-boy. However, the point of the prosecution relying on this case was not to suggest that the facts were largely comparable. It was to submit that it was not necessary for there to be a formal relationship of trust in order to draw guidance from R v D.
[24] [2017] SASCFC 31.
The judge’s determination that this case did not ‘[involve] an egregious breach of trust or a power imbalance such as that dealt with by the Full Court in Chesterman’ understated matters significantly. He made that statement having said, immediately beforehand:
In any child sexual offending there will always be a power imbalance by the very nature of the offender being an adult and the victim being a child.
That much is true. However, the strong implication of this statement in the context in which it was made is that this was a sufficient description of the power imbalance in this case. This is reinforced by what the judge said next:
In making these observations I am not minimising the seriousness of this offending. Plainly, it was a lengthy course of conduct, involving a multiplicity of unlawful sexual acts against a background of manipulative behaviour.
For the reasons explained above, the relationship was characterised by considerably greater dependence and vulnerability than these observations reveal. Moreover, the judge made further comments that tended to undermine the significance of this dependence and vulnerability:
Whilst the prosecution points to matters such as the age gap, the degree of vulnerability which you exploited to some extent at least at the commencement of your offending, it is to be borne in mind that the unlawful sexual activity commenced very close to the 16^th birthday of the victim, meaning that your victim was not a child of particularly tender years.
This statement is surprising. Clearly enough, the CLCA treats as more serious sexual offending against younger children than older children. The distinction in s 49 (unlawful sexual intercourse) between children under the age of 14 years and children under the age of 17 years illustrates this. However, the judge here appears to have deployed the phrase ‘not a child of particularly tender years’ as being in some way ameliorative of the vulnerability he had just noted. It is helpful here to recall the observation of King CJ in R v Williams:[25]
The law which prohibits sexual intercourse with young girls exists in order to protect young girls from their own inclinations, until they have reached a sufficient degree of maturity in life to make sensible and responsible decisions as to their own lives. It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advantage of the sexual inclinations of young girls.
[25] (1990) 53 SASR 253 at 254.
Moreover, to suggest that the exploitative aspect of the offending was confined to its commencement was misconceived. The complainant was dependent on the respondent for a place to live for almost the whole the duration of the offending. Throughout that time she was subjected to ongoing, frequent and degrading sexual abuse. The respondent exploited her vulnerability throughout.
It follows that we accept the sentencing judge understated materially the objective seriousness of the offending. In this regard, while at different times he referred to matters that spoke to the seriousness of the offending, he failed to draw on the guidance that R v D necessarily provided.
In the final analysis, we treat these matters as explicating the very low starting point of six years that the judge adopted.
While a starting point a little short of the 10-year period indicated in R v D would have been within the judge’s discretion, a starting point of 60 per cent of that indication lay well outside it. Given the guidance that R v D necessarily provides in a case such as this, where the relationship of dependence and vulnerability characterised a power imbalance that was comparable to a formal relationship of trust, the starting point was manifestly inadequate.
Permission to appeal
In R v Kelly,[26] Lovell JA provided a helpful articulation of the principles informing when it is appropriate to grant the prosecution permission to appeal against sentence:[27]
Whether to grant the prosecution permission to appeal against a sentence involves a balancing exercise. The prosecution will be granted permission to appeal if it is necessary to enable the court 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; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’.
However, as King CJ in R v Drewett observed, “even great disparity between the sentence imposed and the sentence which the appellate court would regard as appropriate, does not of itself justify allowing a prosecution appeal.” The principle of double jeopardy means that both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate.
To put that another way, the court must be persuaded that the public interest in maintaining appropriate sentencing standards justifies appellate intervention, notwithstanding the hardship to a defendant associated with the principle of double jeopardy; namely, being twice vexed by the repeated exercise of the State’s coercive power. It is during this balancing exercise that consideration must be given to whether it is a “rare and exceptional” case.
(Footnotes omitted)
[26] [2023] SASCA 22.
[27] R v Kelly [2023] SASCA 22 at [45]-[47].
While the prosecution did submit to the sentencing judge that the R v D ‘tariff’ should not apply, it nonetheless looked to guide the judge to an appropriate sentence by reference to the standard established in that case. Having regard to the sentencing remarks, it is sufficiently clear that the judge significantly diminished the objective seriousness of the offending. It also appears that he treated R v D as not providing any guidance as to the appropriate sentence.
As indicated at the outset of this analysis, these matters are interconnected. Ultimately, however, the sentence was disproportionately low, having regard to the high degree of dependence and vulnerability that characterised the relationship between the respondent and the complainant. The respondent abused that relationship by engaging in frequent and ongoing degrading sexual offending against the complainant.
The maintenance of public confidence in the role of the administration of justice in deterring offending of this nature and protecting children from sexual abuse make it necessary to grant permission to appeal, allow the appeal and resentence the respondent.
Resentencing
Taking into account all the matters referred to above, we adopt a starting point of nine years’ imprisonment. We discount that by five per cent for the plea of guilty. That results in a head sentence of eight years, six months and 19 days. We set a non-parole period of five years and six months.