R v Smith - [2007] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
[2007] SASC 64
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Vanstone)
2 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Application by DPP for leave to appeal against sentence - respondent convicted by jury verdict of three counts of unlawful sexual intercourse with J and convicted on plea of one count of sexual intercourse with C - the trial Judge sentenced respondent to one term of imprisonment of three years and six months with respect to the offending against J - a sentence of one year and eight months was imposed with respect to the offending against C - the sentences to be served cumulatively - a non-parole period of two years and six months was fixed - the trial Judge suspended the sentence - leave to appeal the sentence sought on the ground that the sentences were manifestly inadequate - consideration of the principles relevant to Crown appeals - consideration of whether good reason to suspend the sentence - Held by majority: application for leave to appeal granted, appeal allowed - respondent re-sentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v D (1997) 69 SASR 413; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; R v Hicks (1987) 45 SASR 270; R v Hayes (1987) A Crim R 452; Dinsdale v R (2000) 202 CLR 321; Neill v Police [1999] SASC 270; Bignell v Police [1997] SASC S6482 (unreported, Bleby J, 11 December 1997); Wood v Samuels (1974) 8 SASR 465; R v Temby [2003] SASC 230; Ware v Betts (1987) 134 LSJS 212; Elliott v Harris (No 2) (1976) 13 SASR 516, considered.

R v SMITH
[2007] SASC 64
Court of Criminal Appeal: Doyle CJ, Gray and Vanstone JJ

DOYLE CJ: I would grant leave to the Director of Public Prosecutions to appeal against the sentence, and would allow the appeal. I agree with the orders proposed by Gray J, and with the reasons that he gives for making those orders. There is nothing that I wish to add.
GRAY J
Introduction
This is an application by the Director of Public Prosecutions for leave to appeal against sentence.
The respondent was convicted by jury verdict of three counts of unlawful sexual intercourse with J. He was convicted on his plea on one count of unlawful sexual intercourse with C.
The respondent was sentenced to the one term of imprisonment of three years and six months with respect to the offending against J. A sentence of one year and eight months was imposed with respect to the offence against C. This sentence was ordered to be served cumulatively on the sentence in respect to the offences against J. A non-parole period of two years and six months was fixed with respect to the total term of imprisonment of five years and two months. The total sentence was suspended upon the respondent entering into a bond to be of good behaviour for three years.
The respondent worked as a horse-riding instructor at Whyalla. He developed a relationship with J, a young girl whom he was instructing. The relationship appears to have commenced in the latter months of 2001 and continued until the early months of 2003. The offending against J occurred between December 2001 and September 2002. J was aged thirteen years at the time of the offending, the subject of the first two counts, and fourteen years at the time of the offending, the subject of the third count.
The circumstances of the offending against J were serious. The offences formed part of an ongoing course of conduct. On J’s evidence, that conduct continued for more than eight months. The conduct toward J involved a breach of trust. The respondent was providing riding lessons for J. The respondent befriended J’s family and gained J’s parents’ trust. J’s parents allowed her to have extensive unsupervised contact with the respondent for that purpose. The respondent provided J with a number of gifts, including a mobile phone. It was against this background that the offending occurred. The contact between the respondent and J included travelling to different locations in the State. J’s parents permitted J to stay overnight with the respondent and his partner at his home. The respondent’s conduct involved advances, manipulation, grooming and deceit.
Soon after the respondent’s relationship with J ended in or about June 2003, he commenced another relationship. C was an adolescent and was unable to be cared for by her mother, a heroin addict. As a consequence, C was living in foster care at Whyalla.[1] The respondent met C through the foster carers. When the foster carers became aware that the accused and C were engaged in a sexual relationship, they sought to return C to her mother in Adelaide. The respondent intercepted C’s return at Port Augusta and then arranged with C’s mother to become the guardian of C.[2] The sexual relationship continued whilst the respondent was C’s guardian.
[1] The legal nature of the foster arrangement was not disclosed.
[2] The legal nature of the guardianship arrangement was not disclosed to the Court.
The respondent pleaded guilty to the offence of unlawful sexual intercourse with C between February and May 2004. At the time of sentencing, the respondent and C lived together with the child conceived by the act, the subject of the offence.[3]
[3] This Court was informed that at the time of the hearing of the application for leave, the respondent and C had separated. The respondent continued to take responsibility for the child of the relationship. Both parties submitted that the Court should not have regard to this change of circumstance when considering the application. The Court accepted this submission.
The relationship of guardian between the respondent and C imposed an obligation on the respondent to care properly for C. The relationship involved a high degree of trust. The respondent acted in breach of that trust in his ongoing relationship with C. This was particularly serious criminal conduct. The respondent deliberately manipulated the situation. He took control of C, as guardian, to enable their sexual relationship to continue.
The respondent was born on 20 September 1974 and was aged in his late twenties at the time of the offending. The sentencing Judge summarised the personal antecedents of the respondent as follows:
I turn to your personal circumstances. As mentioned, you are 32. You have no prior appearances and you have led a useful and industrious life. You grew up in Whyalla and there completed a successful apprenticeship with BHP, qualifying as an electronic engineering tradesman. You have always been employed and have been a hard worker. You showed great skill in horse riding from an early age and your skill was recognised by your becoming a State champion horse rider. Because each of these girls was involved in the horse riding fraternity you have severed connections with that fraternity. Some of the letters that I have seen, and the submissions that I have heard, make clear how painful that has been for you.
I have carefully read the many testimonials that your counsel has tendered. They speak highly of you as a worker, as someone who helps out in the community, and who supports friends. The victim impact statements of J and her mother speak of the ill effects on them of your offending, but the testimonials highlight the positive side of your personality.
I am very conscious of the claims made for leniency on your behalf by C and her mother. Your counsel has described as devastating the effect of your going to prison. You and C work at a country abattoir, with you in the capacity of your trade. You each work long shifts, arranged so that one of you is always home to look after your daughter. If you were not at liberty, then C would have to give up her job and would become dependent on welfare.
The sentencing Judge imposed a head sentence and fixed a non-parole period on the basis that the respondent had no prior convictions, was showing signs of maturity that were not evident at the time of his offending, had become a responsible parent and was in full-time employment, as well as on the basis that C was dependent upon him, both financially and emotionally. Due to these factors, the Judge also considered that good reason existed to suspend the sentence, noting in particular the effect that a term of imprisonment would have on the respondent’s family. The Judge in the course of his sentencing remarks concluded:
In respect of the offending against J, I fix one penalty for the three offences representing the course of conduct. That is pursuant to s.18A of the Criminal Law (Sentencing) Act. I fix a head sentence of three and a half years imprisonment.
For the offending against C, I would have fixed a head sentence of two and a half years, but I reduce that by reason of the early plea of guilty to one year and eight months. I order that those sentences be cumulative, making a total head sentence of five years and two months. I do not consider that any adjustment is needed by reason of the principle of totality.
I turn to the non-parole period. You have no prior convictions and there are now signs of a maturity that was not evident at the time of your offending against either of these girls. You have become a responsible parent. C is dependent upon you emotionally and, to a large extent, financially. It is unlikely that she would be able to get the sort of support from her parents which you can provide. In these circumstances, I fix a lower non-parole period than might otherwise be called for. I fix a non-parole period of two and a half years. I turn to the difficult question of suspension.
I regard the effects on your family as being exceptional. In combination with the other mitigating factors I have referred to, and with some hesitation, I find there is good reason to suspend the sentence. I will suspend the sentence upon you entering into a bond in the sum of $500 to be of good behaviour for three years.
The DPP contended that the sentences were manifestly inadequate. The DPP said that they failed to maintain adequate standards of punishment for offences of this nature. Further, the DPP complained that the sentences failed to reflect adequately both the criminality of the respondent’s conduct and the need for general and personal deterrence. Finally, the DPP said that the sentencing Judge erred in the exercise of his discretion to suspend the sentences.
Notwithstanding the respondent’s continued relationship with C at the time of sentencing, the DPP said that the breaches of the law were so serious that an immediate term of imprisonment was called for. The ongoing nature of the unlawful conduct, the breaches of trust involved, the age of the girls and the age of the respondent, together created circumstances, in the DPP’s submission, where good reason to suspend the sentence did not arise. The DPP argued that the gravity of the offending and the public interest outweighed the personal antecedents of the respondent that might otherwise provide good reason to suspend.
Counsel for the respondent submitted that this was not a case for the grant of leave. Counsel accepted that the sentences imposed were extremely lenient and could fairly be described as merciful. However, Counsel contended that the respondent’s excellent personal antecedents and his developing maturity justified the course taken by the sentencing Judge.
The Application
Relevant Principles
The principles relevant to Crown appeals against sentence are well established. In Nemer,[4] Doyle CJ summarised those principles:[5]
The Director's right to seek leave to appeal against sentence, and the court's power to interfere, are found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). Similar provisions exist in other States.
The High Court has determined that the court should grant leave to the Director to appeal against sentence "only in the rare and exceptional case": Everett v The Queen (1994) 181 CLR 295 at 299.
The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would "shock the public conscience": see R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[4] R v Nemer (2003) 87 SASR 168.
[5] R v Nemer (2003) 87 SASR 168 at [22]-[24].
In Osenkowski,[6] King CJ observed that the proper role for prosecution appeals is:
-to enable courts to establish and maintain adequate standards of punishment for crime;[7]
-to correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crime;[8] and
-occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[9]
[6] R v Osenkowski (1982) 30 SASR 212.
[7] R v Osenkowski (1982) 30 SASR 212 at 212-13.
[8] R v Osenkowski (1982) 30 SASR 212 at 212-13.
[9] R v Osenkowski (1982) 30 SASR 212 at 212-13.
The basis for the “rare and exceptional” test for Crown appeals lies with the principle of double jeopardy, as explained by the majority of the High Court in Everett. [10] Their Honours observed:[11]
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.
[10] Everett v The Queen (1994) 181 CLR 295.
[11] Everett v The Queen (1994) 181 CLR 295 at 299 (footnotes omitted).
Earlier, in Malvaso,[12] Deane and McHugh JJ noted that the Crown appeal against sentence:[13]
[R]epresents a departure from the traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy.
[12] Malvaso v The Queen (1989) 168 CLR 227.
[13] Malvaso v The Queen (1989) 168 CLR 227 at 234.
Furthermore, the discretion of the sentencing Judge when imposing a sentence is not to be interfered with lightly. As King CJ noted in Osenkowski: [14]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
[14] R v Osenkowski (1982) 30 SASR 212 at 212-213.
An appellate court may interfere to correct a sentence where it is so far below the appropriate range that it reflects an error of principle, or would “shock the public conscience” were it allowed to stand.[15]
[15] R v Nemer (2003) 87 SASR 168 at 172 (Doyle CJ); R v Osenkowski (1982) 30 SASR 212 at 213.
However, in a case where an offender has been given a non-custodial or suspended sentence, the appellate court will be particularly reluctant to interfere and impose a sentence of immediate imprisonment. In Hicks,[16] King CJ observed:[17]
When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.
[16] R v Hicks (1987) 45 SASR 270.
[17] R v Hicks (1987) 45 SASR 270 at 273. See also R v Hayes (1987) A Crim R 452 at 469 (Kirby P).
Accordingly, a Crown appeal against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. Furthermore, an error must be identified before a sentence may be interfered with. As Kirby J explained in Dinsdale:[18]
As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
Such error may be inferred from a result that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[19]
[18] Dinsdale v R (2000) 202 CLR 321 at 339-340 (footnote omitted).
[19] Dinsdale v R (2000) 202 CLR 321 at 339-340.
Consideration of the Application
Over a period of four years, the respondent maintained unlawful sexual relationships with two young girls who were about half his age. He had been entrusted with the care of the children by their parents. The respondent’s behaviour included “grooming” the complainants, persistent advances, deceit and manipulation. This was predatory behaviour.
The respondent exhibited a disposition for sexual relations with young girls. His practices left C pregnant. There was no evidence that his unlawful sexual orientation has been addressed in any way.
The sentencing Judge “compartmentalised” the offending against the complainants. He found that the offences involving each complainant were “separate in their nature”. This approach obscured the seriousness of the respondent’s offending.

At the time of the offending the respondent was nearly thirty years of age. He had the capacity to understand that he was committing criminal offences. He showed no remorse or contrition. He appeared to have little appreciation of the moral and criminal culpability of his conduct.
It could not be assumed that the respondent would never again teach children to ride horses or find himself in circumstances where he might be tempted to offend.
As earlier observed, the respondent’s offending involved a breach of trust with respect to J. The respondent gained the confidence and trust of J’s parents. This allowed the respondent the opportunity to develop a relationship with J in regard to horse-riding instruction. It was out of this relationship that the offending occurred.
The sentence imposed with respect to the offending against J was a merciful sentence. It is not a sentence that in the circumstances should be reviewed on a Crown appeal. It represented a proper exercise of sentencing discretion.
The respondent’s relationship with C involved a particularly serious breach of trust. The respondent took on the responsibilities and duties of a guardian towards a 15-year-old adolescent. He did so to enable his sexual relationship with C to continue. He abused his authority and responsibilities as guardian. It was in the course of this relationship that the particular incident, the offence against C, occurred.
The sentencing Judge treated the fact that the relationship between the respondent and C was apparently harmonious as mitigatory. It was not. It is fortuitous that a “harmonious” relationship continued to the time of the sentencing after the offending and the birth of their child. However, the Judge failed to have proper regard to the course of unlawful sexual conduct with C. As earlier observed, the offence against C was very serious. The respondent was her guardian. As a result of the offence, C became pregnant at the age of 15. The protection of children from the physiological and psychological consequences of sexual intercourse is an important purpose of this particular provision of the criminal law.
Although, at the time of sentencing, it may be accepted that the respondent’s young family would prefer, and may be better off with, both parents working long hours and caring for their daughter in alternate shifts, it has not been shown that the financial or emotional hardship that would ensue if the respondent was imprisoned would be “undue” or in any way exceptional. As Doyle CJ observed in Neill:[20]
The process of sentencing does not become one in which the impact on the offender’s family controls the outcome, or even is a dominating factor.
[20] Neill v Police [1999] SASC 270 at [24].
It would be wrong to assume for the purposes of sentencing that the relationship between C and the respondent would endure. There was no independent assessment of the state of their relationship or the durability of the current living and working conditions. C was not yet nineteen years of age.
The head sentence of one year and eight months imposed by the sentencing judge allowed a reduction of ten months from the starting point of two years and six months, a discount of 33 per cent. In an ordinary case, where an early plea of guilty is taken, the reduction allowed is frequently in the range of 20 to 25 per cent. In cases where additional and special co-operation or assistance has been given to authorities, a reduction as high as 40 per cent may be allowed. In the present case, an appropriate reduction would have been in the order of 20 percent.
The sentence imposed with respect to the offending against C was inadequate, and manifestly so. The gross breach of trust, the manipulations involved and the respective ages of the respondent and C called for a head sentence of three years. As this is a Crown appeal, it is appropriate to fix a head sentence at the lower end of the appropriate range. A reduction in the order of 20 per cent on account of the plea was appropriate. A head sentence of two years and four months should be imposed for this offence.
The two sentences of three years and six months with respect to the offending against J and two years and four months with respect to the offending against C should be cumulative. As discussed earlier, the sentence imposed against J was merciful. There is no need for any further reduction from the overall sentence having regard to the principles of totality. I would invoke section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and impose the one sentence of five years and ten months.
The respondent has no prior criminal record, a good employment history and ongoing family support. These factors allow for the fixing of a short non-parole period. In the circumstances, the period fixed by the Judge of two years and six months is appropriate. It is also to be borne in mind that the respondent has been exposed to double jeopardy and has been subject to a suspended sentence for a period of almost four months. This is a further reason not to interfere with the non-parole period fixed by the Judge.
As earlier observed, the DPP submitted that the circumstances of the offending were of such a nature that it was inappropriate to suspend the sentences of imprisonment. In Bignell,[21] Bleby J explained why considerations of general deterrence will in the general run of cases of this type outweigh personal claims to leniency:[22]
Of course much can be and was said in favour of the appellant. A regrettable feature of so many sexual abuse cases of this nature that come before the courts is that defendants have impeccable records, are decent hardworking upright members of society, undertake substantial community service, and on the surface have a good healthy family and marital relationship. Furthermore, they almost invariably show genuine and deep remorse.
It is because of all those common features that deterrence becomes such a significant element, and why custodial sentences, distasteful as they may be, are more often than not imposed. The fact that the appellant has good support systems, and still enjoys cordial relationships with the victims, speaks volumes for those who support him and stand by him, and says much for the Christian and forgiving attitude of his victims. He and they are extremely fortunate people, however that cannot detract from the seriousness of the offences, and the need to deter others of equal standing in the community who may be tempted to engage in similar conduct.
[21] Bignell v Police [1997] SASC S6482 (unreported, Bleby J, 11 December 1997).
[22] Bignell v Police [1997] SASC S6482 (unreported, Bleby J, 11 December 1997).
In contrast with the “usual” case described by Bleby J, the respondent has shown no remorse. The fact that the respondent committed offences against two young girls indicates that neither relationship can be properly regarded as an anomaly. There was an element of persistence. As Walters J in Wood v Samuels[23] observed: [24]
[T]he perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence.
[23] Wood v Samuels (1974) 8 SASR 465.
[24] Wood v Samuels (1974) 8 SASR 465 at 469 per Walters J, cited with approval in R v Temby [2003] SASC 230 at [25] per Debelle J (Sulan and Gray JJ agreeing).
It is to be remembered that a suspended sentence of imprisonment is a significant penalty.[25] In Elliott v Harris (No 2), Bray CJ noted that:[26]
So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.
[25] Ware v Betts (1987) 134 LSJS 212; Elliott v Harris (No 2) (1976) 13 SASR 516 at 527.
[26]Elliott v Harris (No 2) (1976) 13 SASR 516 at 527.
However, for the reasons mentioned earlier the respondent’s conduct, in particular the gross breach of trust with respect to the offences against both J and C; the respondent’s abuse of the guardian relationship with C, the persistent nature of his conduct and that he has shown no remorse and little appreciation of the moral and criminal culpability of his conduct, is too serious to permit the sentence to be suspended.
Conclusion
I would grant leave to appeal and allow the appeal. I would order that the respondent be sentenced to a term of imprisonment of five years and ten months. I would fix a non-parole period of two years and six months. I would decline to suspend the sentence.
VANSTONE J: The Director of Public Prosecutions seeks leave to appeal against the inadequacy of sentences imposed in the District Court for four counts of unlawful sexual intercourse.
The respondent was convicted by jury verdicts for three such offences, committed against “J”. Two of those offences occurred when she was aged 13 years and the third after she had turned 14 years of age. The respondent pleaded guilty to a further count committed upon a girl “C”. That offence occurred when C was aged 15 years and 10 months. As a result of that conduct C conceived a child. At the time of sentence the respondent, C and the child were living together as a family. The sentences imposed were terms of three years and six months for the earlier offences and one year and eight months for the last offence, to run consecutively. A non-parole period of two years and six months was fixed. The sentence was suspended upon the respondent entering into a three year good behaviour bond.
The earlier offences, relating to J, occurred over a period of about eight months. During that time the respondent and J were in an apparently exclusive sexual relationship. The respondent was then aged 27 to 28 years. That relationship ended before the relationship with C commenced. At the time of the only count involving C, she was aged 15 years and 10 months and the respondent was aged 29 years. The gravamen of the entire course of conduct was that for much of the period from January 2002 to May 2005 (when C turned 17) the respondent was carrying on a sexual relationship with an underage girl.
The sentencing judge found, correctly, that the conduct represented by all the charges was serious. That was so even though there was no suggestion that any of the intercourse was other than consensual. He found that in both cases there was an element of a breach of the trust reposed in the respondent by each girl’s parent or carer. In respect of J that amounted to the respondent being entrusted at times with J’s care overnight when she stayed with him for the purpose of her attending horse trials. As to C, she lived for a time with a family friend, as her mother had some personal difficulties. The relationship between the respondent and C commenced during that period. The family friend was misled as to the nature of the relationship.
His Honour found that there were important differences in the nature of the offending against the two girls. No doubt one aspect of that was the significantly different ages of the two girls at the time of the offending. At the time C conceived she was 14 months short of the age of consent. As I have said, J was much younger. Then, clearly, there was the number of offences of which the respondent was convicted. Whilst it is true that there was an ongoing relationship in each case, the fact that there was a single charged offence only in respect of C cannot be overlooked. Further, the sentencing judge referred to the claims for leniency to the respondent made by C and her mother. It was said that without the respondent’s ongoing emotional and financial support C would not be able to continue working and would become dependent on welfare. Then, of course, there was the fact that the respondent pleaded guilty to the offence concerning C.
Relevant to both courses of conduct was acceptance that the respondent had no convictions apart from traffic matters and that he had a good work history, having qualified as an electronic engineering tradesman. Further, the judge found that whilst the respondent was emotionally immature at the time of the offending, by the time of sentence he had shown signs of a new maturity and a preparedness to take on the role of a responsible parent. In addition, the judge was impressed by the provision of numerous character references which spoke consistently of the high regard in which the respondent was held in a number of different arenas.
The principles governing prosecution appeals are well established and are not in need of reiteration. The particular purposes which, it was submitted, would be served by granting leave to appeal in this case were establishment of the principles governing the discretion to suspend sentences for offences such as this, consideration of the weight to be afforded to C’s pregnancy and maintenance of existing standards of punishment.
In my view the circumstances of this case are not such as to warrant the grant of leave to appeal. In my opinion fair minds could differ as to its appropriate disposition. In many of the cases dealing with these charges there is a great disparity in the age of the offender as against the age of the victim. Indeed, that is one of the most odious aspects of these matters. R v D (1997) 69 SASR 413 was such a case. There the victim was 13 years of age and the prisoner was 41 years of age. There the victim was the appellant’s stepdaughter and the appellant held a position of trust and authority in respect of her. Well known statements of principle in that case do not lend themselves readily to the circumstances of the case at bar.
Here the disparity in ages was not nearly as great and the nature of the relationship was materially different. The respondent was not in a position of authority with respect to the victims in the way D was. I do not think there is any reason to doubt that the judge appreciated the seriousness of the offending. The judge had the advantage of having seen the respondent during his trial, an advantage which this Court has not had.
It has been suggested that the judge could not have given appropriate weight as a matter of aggravation to the fact that the victim C fell pregnant to the respondent. That is a serious aspect of the case. But again I consider that the determination of the respondent and C to commence a life together and to provide a home for their child was also pertinent. Then, some judges might have considered that the offence against C, occurring at a time when the respondent had had time to reflect upon his earlier conduct, including an upsetting ending to his relationship with J, coupled with the fact of the pregnancy, would have justified a higher sentence. Against that however was, as I have mentioned, the difference in the age of the two victims, the fact that only one offence was charged in respect of C and the respondent’s plea of guilty to the later offence. In my view the total of the sentences was well within the available range and is not such as to justify interference by this Court.
I turn then to the question of suspension. In a case where the approach of the sentencing judge and length of the sentence imposed does not disclose error, the burden upon the Director to demonstrate that suspension of that sentence should be set aside is a heavy one. The decision to suspend the sentence was certainly merciful. Indeed where conduct is adjudged serious enough to attract a total head sentence of five years and two months, good reason to suspend can rarely be found. I think that in this instance the sentencing discretion miscarried, in that the sentence should not have been suspended. Nevertheless, in the end I have reached the view that none of the proper purposes of prosecution appeals would be served by interfering in this sentence. An important factor in that decision is that the sentencing in this matter took place on 18 October 2006, more than four months ago. To reverse the suspension of the sentence at this time would be, in my view, unduly harsh. It is enough that this Court indicate that the sentence should not have been suspended.
I would refuse leave to appeal.