R v Stain - [2021] SASCA 70

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v STAIN
[2021] SASCA 70
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Bleby and the Honourable Justice Blue)
8 July 2021

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 - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Application for permission to appeal against sentence by the Director of Public Prosecutions (SA).
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). The offending occurred when the respondent was a high school teacher at a school that the complainant attended in the early 1980s.
The respondent was sentenced on the basis that he genuinely cared for the complainant and that there was no predation in his offending. The sentencing Judge also made reference in her remarks to the respondent’s rehabilitation and the delay between the offending and the date of sentence.
The sentencing Judge identified a starting point of six and a half years imprisonment, which was reduced by 40 per cent on account of the respondent’s early guilty plea. The respondent was sentenced to a head sentence of three years, 10 months and 25 days imprisonment, with a non-parole period of 14 months.
The Director of Public Prosecutions seeks permission to appeal on the basis that the head sentence and the non-parole period, as a proportion of the head sentence, are manifestly inadequate.
Held (by the Court), granting permission to appeal and allowing the appeal:
1. The sentencing Judge did not adequately take into account circumstances of the offending which justified, and indeed required, strict adherence to the sentencing standard set in R v D.
2. It was not appropriate for the sentencing Judge to attribute significant weight to considerations of delay and rehabilitation in circumstances where the delay in reporting was due to the nature of the offending.
3. The sentencing process has miscarried, resulting in a manifestly inadequate sentence and non‑parole period.
4. It is necessary for this Court to intervene in order to maintain the sentencing standard for offences of this kind and to maintain public confidence in the administration of justice.
5. The sentence is set aside and the respondent is re-sentenced. From a starting point of 10 years, the respondent is sentenced to six years imprisonment, with a non-parole period of three years and six months.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Sentencing Act 2017 (SA) s 68, referred to.
R v D (1997) 69 SASR 413, applied.
Everett v The Queen (1994) 181 CLR 295; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Green v The Queen (2011) 244 CLR 462; R v Buttigieg (2020) 352 FLR 170; R v Nemer (2003) 87 SASR 168; R v Harkin (2011) 109 SASR 334; R v Osenkowski (1982) 30 SASR 212; R v Bonython-Wright (2013) 117 SASR 410; R v Cattell (2019) 280 A Crim R 502; R v V, AJ [2012] SASCFC 10; R v Quinn (2012) 114 SASR 354, considered.

R v STAIN
[2021] SASCA 70

Court of Appeal – Criminal: Kelly P, Bleby JA and Blue AJA
THE COURT:

This is an application for permission to appeal against sentence by the Director of Public Prosecutions.
The respondent, Christopher Wright Stain, 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). The charge related to historical acts that occurred when the respondent was a high school teacher. The complainant was a student of the respondent in the early 1980s.
The respondent was sentenced for the offending on 7 April 2021. The sentencing Judge identified a starting point of six and a half years, which was reduced by 40 percent on account of the respondent’s guilty plea. The respondent was sentenced to three years, 10 months and 25 days imprisonment. A non-parole period of 14 months was fixed. The sentence and non-parole period were to commence on 7 April 2021.
The Director of Public Prosecutions seeks permission to appeal against the sentence imposed on the basis that the head sentence, and the non-parole period as a proportion of the head sentence, are so manifestly inadequate as to warrant the intervention of this Court.
The factual basis of the offending
The offending occurred approximately 40 years ago. The complainant reported the offending in February 2020.
The respondent and the complainant met in 1981. The respondent was the mathematics and homeroom teacher of the complainant at a high school in a country town. At the time of meeting, the complainant was a year 8 student aged 12 years. The respondent was 27 years of age and was married with children.
In the first six months of her year 8 schooling, the complainant and the respondent became friends. The respondent visited the complainant’s house four or five times after school and sometimes drove the complainant home from school. The complainant’s parents were not home during the respondent’s visits; however her siblings were. When driving the complainant, the respondent would compliment her on how she looked.
In the second half of 1981, the respondent started weekly Bible meetings on Friday nights at his house with school students. He invited the complainant to attend and offered to drive her to his house after school and drop her off at home after the meetings. The meetings usually finished at around 8:00pm. When dropping the complainant off at her house, the respondent would often stop in different places on the way so that they could talk. The complainant confided in the respondent about difficulties at home. The respondent asked her about her previous sexual experiences and he told her about his, including difficulties in his sexual relationship with his wife. During one of those conversations, the complainant disclosed to the respondent that she had been raped previously. Following this disclosure, the respondent kissed the complainant for the first time.
The Bible meetings continued in 1982, when the complainant was 13 years old. The respondent was no longer teaching the complainant at school; however he still saw the complainant at the Bible meetings and remained a teacher at the school she attended.
On one occasion, after a Bible meeting, the respondent did not want to drop the complainant off at home and asked her to ring her parents to see if she could stay the night at his house. The complainant called home and told only her sister that she was not coming home. On that particular night, while in the lounge room, the respondent lifted the complainant onto his lap and kissed her. The complainant said that she tried to keep her mouth closed, but the respondent put his tongue in her mouth. The complainant stated that she felt uncomfortable and that the respondent apologised.
Later that evening, the respondent entered the complainant’s room, unbuttoned her pyjamas and touched her breasts. He then laid on top of her and kissed her neck and near her breasts. This was the beginning of the sexual relationship between them, which continued for about one and a half years.
A short time after the first incident, when the respondent was at the complainant’s house, he committed the first act of penile intercourse with the complainant, which was unprotected. A few weeks later, the complainant feared that she was pregnant because her period was late. The respondent told her not to disclose their sexual encounter or the fact that she might be pregnant to anyone. Two weeks later, he took the complainant to a doctor. The offending was not disclosed.
Following this, the offending became more frequent, involving multiple acts of penile intercourse, touching of the complainant’s breasts and causing her to perform an act of fellatio upon him. The respondent secretly met the complainant in a secluded area approximately once a week in the early hours of the morning, where these sexual encounters occurred. Although the complainant felt confused and scared, she stated that the fact that the respondent wanted to be with her felt nice. The respondent told the complainant that he loved her on more than one occasion.
At the time of the offending, the respondent showed an interest in the complainant and would occasionally buy her lunch at school. Rumours formed about their relationship. The complainant was approached by teachers at school in relation to how much time she spent with the respondent and was teased by other students. Some students threw spit balls at her and called her ‘Mr Stain’s slut’.
The sexual relationship between the respondent and the complainant came to an end when the complainant wrote him a letter asking to be left alone in 1984, when she was 14 years old. She told him that she did not want to be guilted into being with him and that she wanted to break the hold he apparently had over her.
The complainant did not report the offending until February 2020. Prior to that, the respondent had disclosed his offending to a number of people including his friend, who was a pastor, his general practitioner and a psychiatrist. These disclosures occurred in 1998. He also engaged in group therapy sessions for a number of years, due to his feelings of guilt and shame.
Findings of the sentencing Judge
At the time of sentencing, the sentencing Judge had before her a psychological report by Mr Fugler dated 24 November 2020. The contents of the report provide context to the unlawful sexual relationship. The respondent told Mr Fugler that, after the complainant told him that she had been raped, his misguided compassion towards her led him to believe that a ‘positive sexual experience’ would counter the negative effects of the rape. He rationalised the relationship by reference to his belief that he was in love with the complainant and would eventually marry her.
In his report, Mr Fugler ultimately formed the opinion that the respondent was at a low risk of further offending. The Judge agreed with this assessment, having specific regard to there being no evidence of any other sexual offending or sexual interest in children on the part of the respondent in almost 40 years since the offending.
The complainant provided a victim impact statement at the time of sentencing. She stated that she felt conflicted at the time of the offending and that the abuse created a sense of shame and feelings of worthlessness, which have significantly impacted her life. She reported feeling suicidal both as a child and as an adult. While the Judge acknowledged that the offending had a ‘profound effect upon her’, her Honour accepted that the respondent did not intend or anticipate those effects, as he was ‘blinded’ by his love for the complainant.
Overall, the respondent was sentenced on the basis that his position as a teacher at the complainant’s school meant that he occupied a position of trust; however not the type existing between a teacher and his student. This was due to the offending, with the exception of the first kiss, occurring when the complainant was in year 9 and not a student of the respondent. The respondent was also sentenced on the basis that there was no predation in his offending and that he had a genuine interest in, and cared for, the complainant.
The sentence
At the time of sentencing, the respondent was 67 years of age. He has various health issues, which led the sentencing Judge to conclude that a prison sentence would have a greater impact on him than it would have on a person of good health.
The Judge adopted a starting point of six and a half years imprisonment. After applying a 40 per cent discount for the respondent’s guilty plea, that sentence was reduced to three years, 10 months and 25 days imprisonment. A non-parole period of 14 months was set, having regard to the respondent’s personal circumstances, which were described as compelling.
In awarding a discount of 40 per cent, her Honour considered the general principles to be applied in relation to the discount to be awarded for a guilty plea. Her Honour made the following findings:
In my view, the delay between the offending and sentence together with your obvious remorse, the steps you have taken to obtain professional assistance and what I accept to be a low risk of reoffending mean that the need for community protection is not such that the giving of a discount of or approaching 40% would result in a sentence so disproportionately low that it would or may affect public confidence in the administration of justice.
Nor do I consider that the prosecution case on the offence to which you pleaded guilty was so overwhelming that a reduction of your sentence by 40% would be so inappropriate that it would or may affect public confidence in the administration of justice.
The sentencing standard I must apply is that set out in R v D, where it was said that for offending involving a child over 12 years of age the starting point should be 10 years. Of course, this is a starting point only and the actual sentence for a particular defendant will depend upon the careful evaluation of all factors relevant to sentence.
The sentence I impose must send a message to others that the community roundly condemns sexual abuse of children.
However, for the reasons I have already set out, personal deterrence is not a factor which in your case demands any real weight. I do not believe that the community requires protection from you. In arriving at that view, I have taken into account the opinion of Mr Fugler and the exemplary life that you have led in the 38 years since this offence was committed.
The application for permission to appeal
The Director of Public Prosecutions now seeks permission to appeal on the basis that the head sentence is manifestly inadequate and, in addition, the non‑parole period, as a proportion of the head sentence, is manifestly inadequate.
It was accepted by the Director that, even if it can be established that the sentence imposed by the Judge is manifestly inadequate, it does not follow that permission to appeal should necessarily be granted. The circumstances in which permission will be granted to the Director are confined to rare and exceptional cases.[1]
[1] Everett v The Queen (1994) 181 CLR 295, 299; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21]; Green v The Queen (2011) 244 CLR 462 at [1]-[2].
The authorities make it clear that permission may be granted to the Director if it is necessary to establish and maintain adequate sentencing standards, correct idiosyncratic views of individual Judges or correct a sentence so manifestly inadequate that it reflects an error of principle or would shock the public conscience.[2] This may include circumstances where the sentence imposed is so outside of the range of sentences available for the offending that public confidence in the administration of justice would be shaken.
[2] R v Buttigieg (2020) 352 FLR 170 at [39]; R v Nemer (2003) 87 SASR 168 at [24]; R v Harkin (2011) 109 SASR 334 at [19]; R v Osenkowski (1982) 30 SASR 212, 212-213.
In this case, the Director argues that there are two factors which support the Director’s application for permission to appeal. First, it is contended that sentencing for sexual offending against children, particularly in circumstances where the offending involves a gross breach of trust over an extended period, is a matter of high public concern. Second, it is argued that both the starting point with respect to the head sentence, and the non-parole period, as a proportion of the head sentence, are so far below what is appropriate and what is called for by a proper application of the principles in R v D,[3] that intervention by this Court is justified. To allow the sentence to stand would, in the Director’s submission, significantly erode the standard of sentencing for offences of this kind and undermine public confidence in the administration of justice.
[3] (1997) 69 SASR 413.
The respondent submitted that, whilst the head sentence and non-parole period imposed are merciful, they are not outside the acceptable range for offending of this kind, having regard to the personal circumstances of the respondent.
For the reasons which follow, we consider that the Director’s submissions should be accepted and that the appeal should be allowed.
Discussion
In R v D,[4] this Court established a sentencing standard in the order of 10 years imprisonment for sexual offences committed against children over the age of 12. This standard was given legislative recognition through the enactment of s 68 of the Sentencing Act 2017 (SA).
[4] R v D (1997) 69 SASR 413, 424.
In R v D, Doyle CJ acknowledged, in relation to starting points for such offences, that it was not possible to be precise and that the proposed starting points are not intended to be rigid. He recognised that, in an appropriate case, the starting point may be higher or lower.[5]
[5] R v D (1997) 69 SASR 413, 424.
However, as Kourakis CJ observed in R v Bonython-Wright,[6] notwithstanding that the sentencing standard in R v D retains the flexibility acknowledged by Doyle CJ, the discretion available to a sentencing Judge in any instance ‘must be exercised judicially by reference to the standard and not in a way which undermines it’.[7] If a different starting point is selected, that should be supported by reference to circumstances distinguishing the case at bar from the generality of cases referred to by Doyle CJ in R v D.[8] To put it another way, there must be sufficient justification to depart from the established starting point.
[6] (2013) 117 SASR 410.
[7] R v Bonython-Wright (2013) 117 SASR 410 at [98].
[8] R v Bonython-Wright (2013) 117 SASR 410 at [98].
In this case, it is implicit in the Judge’s sentencing remarks that she regarded a number of factors as relevant to her decision to adopt a lower starting point than the standard set in R v D. These factors included the respondent’s remorse and rehabilitation, the lengthy delay between the offending and the date of sentence, the fact that the respondent had led an otherwise blameless life apart from the offending, the fact that he had been active in the church holding positions of responsibility until his arrest, and the fact that he entertained genuine feelings of love and care for the complainant.
Although the Judge referred to the standard set in R v D, she regarded the factors referred to above as mitigating the respondent’s conduct to such an extent that a lower starting point was justified.
While it is accepted that those factors are indeed relevant to sentence, they are not to be viewed in isolation. In the circumstances of this case, there are a number of other factors which, in our view, when weighed with the factors identified by the Judge, justified and indeed required strict adherence to the standard in R v D.
As summarised by the Director, those included:
·the relative ages of the respondent and the complainant during the period of offending;
·the duration and extent of the offending over a period of approximately 18 months;
·the fact that the respondent exploited the complainant’s vulnerability, particularly after she had just disclosed previous sexual offending against her;
·the fact that the respondent became aware that the complainant had a pregnancy scare when she was aged 13 as a result of unprotected sexual intercourse with the respondent, but nevertheless continued to have a sexual relationship with her for some time thereafter;
·the profound harm caused to the complainant, which included not only abuse and harassment from class mates at school who suspected something inappropriate, but deep feelings of shame and guilt which persisted for many years;
·the fact that the respondent did not voluntarily desist from the sexual relationship with the complainant, and that he only did so after the complainant refused to continue the relationship; and
·the gross breach of trust in that the respondent was not only the complainant’s teacher, but also her Bible study leader.

Rather than acknowledging the weight of these factors, which, in combination, demonstrate the seriousness of the offending, the Judge appears to have given more weight to the ‘mitigating’ factors mentioned earlier in this judgment.
The most significant example of this is the Judge’s conclusion that there was no predation in the offending, which was based on the notion that the respondent was ‘in love’ with the complainant and therefore gave little thought to her age, the fact that he was abusing a position of trust and the distinct power imbalance between him and the complainant.
In this context, we pause to note that the Judge’s characterisation of the respondent’s relationship with the complainant was also somewhat contradictory.
On one hand, the Judge said:
Although you were not her teacher at the time of the offending, with the exception of the first kiss, as a teacher at the school at which she attended you occupied a position of trust. You also occupied a position of trust in your bible study group. You taught [the complainant] the word of God but then defied it. It was your job as a teacher and a Christian to be a role model, to prepare the students you taught, or with whom you interacted, for adult life; to show them how to be a good student and a good person. In this task, you failed [the complainant].
Later, in response to the prosecutor’s submission that the offending was aggravated by the relationship of trust between the respondent and the complainant, the Judge said:
The prosecutor has asked me to sentence you on the basis that the offending was aggravated because you were [the complainant’s] school teacher and you were in a position of trust. The material before me establishes that you were not in fact her teacher at the time of the sexual activity, with the exception of the first kiss, but you were a teacher at her school. [The complainant] said that year 8 was the only year that you were her teacher or home room teacher. She said it was in year 9 that sexual activity commenced. I do however find that your position as a teacher meant you occupied a position of trust but not of the type existing between a teacher and his student.
I do not accept that there was predation in your offending or the lead up to it. I accept that this is how [the complainant] perceives it and I can well understand why she has that view. However, on the material before me I am not prepared to find that you deliberately groomed her, for the purpose of having a sexual relationship with her, or that you used the fact that she was vulnerable to exploit her. I will sentence you on the basis that you had a genuine interest and care for her which developed into feelings of love. However, you knew that as a 13-year-old student she was vulnerable to your advances because of the position you had held and because of your mutual faith in God.
The plain fact is that, irrespective of the Judge’s characterisation of the respondent’s conduct and his reasons for it, the complainant was in a vulnerable position vis-a-vis the respondent. There was an element of grooming and predation in that the respondent took a one-on-one interest in the complainant, drove her home from Bible meetings and, from time to time, complimented her on her looks in the lead up to the offending. Later, when she finally felt confident enough to confide in him about an unrelated sexual assault upon her, the respondent exploited her vulnerability by kissing her. Soon after, a sexual relationship began.
The context of the relationship, and the complainant’s position as a child, made the conduct of the respondent predatory in nature from the outset. The fact that the respondent believed that he was in love with the complainant cannot, and does not, detract from this.
In addition to the context of the offending, the sentencing Judge also placed emphasis on two topics. The first was the delay between the offending and the sentencing of the respondent. The second was the respondent’s rehabilitation in the intervening years.
In placing emphasis on these topics, the Judge appears to have adopted the same approach as the sentencing Judge in R v Cattell.[9] In that case, in concluding that the Judge at first instance placed too much emphasis on the delay between the offending and sentencing and the respondent’s remorse, contrition and rehabilitation, the Court said:[10]
I acknowledge that sentencing judges have a wide discretion and the weight to be given to particular sentencing considerations is quintessentially for the judge. However to elevate considerations of fairness to the respondent to a “dominant role” in the circumstances of this case is, in my respectful opinion, more than giving delay and rehabilitation undue weight but is an error of principle and is reviewable by this Court in accordance with the principles of House v The King. The purposes of sentencing, which include general deterrence; the recognition of serious harm to each of the victims; the accountability of the respondent; the denunciation of his conduct and adequate punishment for his crimes could not be regarded as being subordinate to delay and rehabilitation.
(Citations omitted)
[9] (2019) 280 A Crim R 502.
[10] R v Cattell (2019) 280 A Crim R 502 at [141].
In the present case, it appears from the Judge’s remarks reproduced at [23] of these reasons that her Honour has treated the important sentencing considerations of general deterrence, punishment and recognition of serious harm to victims, as subordinate to considerations of delay and rehabilitation. In doing so, the Judge has not taken into account that it is notorious that, in cases of sexual offending against young children, victims are often reluctant to come forward and make any complaint for many years after the offending. It is also not uncommon for offenders in these cases to have no other criminal history or to have resumed a ‘normal law-abiding life’ following the offending.[11] In the words of Doyle CJ, to place excessive weight on the passage of time and the lack of criminal history in cases of this kind is to allow offenders to escape due punishment.[12]
[11] R v V, AJ [2012] SASCFC 10 at [3].
[12] R v V, AJ [2012] SASCFC 10 at [3].
We add that, in relation to the issue of delay, advanced age and rehabilitation, this Court in R v Quinn observed:[13]
The defendant’s advanced age at sentence was a consequence of the delay in the defendant’s offending coming to light. The defendant, during the period of delay, has been able to enjoy more than two decades of his life without the blight of these convictions on his character and the consequences associated with that. The delay would appear to be a result of the age of the victims at the time and the position of authority of the defendant. In these circumstances, general deterrence may assume greater importance over mercy than might otherwise be appropriate.
[13] (2012) 114 SASR 354 at [36].
Although, in this case, her Honour went to some lengths to explain her decision to adopt a lower starting point, it is plain that she did not adequately take into account the factors referred to at [36] above. Far from mitigating the respondent’s offending, those characteristics actually made the offending more serious. Additionally, it was not appropriate to attribute significant weight to delay and rehabilitation in circumstances where the delay in reporting was due to the very nature of the offending.
A higher starting point than that articulated in R v D could have been justified in the circumstances, when regard is had to the factors already mentioned and, in particular, the gross breach of trust and the relative disparity between the ages of the respondent and the complainant.
Furthermore, it appears from the sentencing remarks that the Judge conflated the issue of the primary purpose of sentencing, namely to protect the safety of the community, with the issue of personal deterrence. While it is correct that, in light of the respondent’s rehabilitation, remorse and contrition, considerations of personal deterrence were not as important in sentencing him, the primary purpose of sentencing, namely the protection of the community, is also advanced by sentences which not only act as a personal deterrent but also serve the purpose of general deterrence. While making reference to the principle of general deterrence, the Judge did not actually take it into account.
In summary, the sentencing process in this matter has miscarried, resulting in a manifestly inadequate sentence. The non-parole period was also manifestly inadequate for the same reasons.
It is necessary for this Court to intervene in order to maintain the sentencing standard established in R v D for offences of this kind and to maintain public confidence in the administration of justice.
For these reasons, we would grant the Director’s application for permission to appeal and allow the appeal. The sentence imposed by the District Court Judge should be set aside and the respondent should be resentenced in this Court.
Resentencing
In resentencing the respondent, we would adopt a starting point of 10 years. Applying the same discount as the Judge of 40 per cent, and noting there was no complaint about the extent of that discount, that starting point is reduced to six years. We would impose a relatively merciful non-parole period of three years and six months, in light of the respondent’s personal circumstances which include genuine remorse, contrition and rehabilitation.
We add that the Judge’s sentencing remarks as a whole in this matter underscore the necessity for the continuing legal education of Judges to ensure that they properly understand and appreciate the dynamics involved in the sexual predation of children, the profound harm caused to those children and the need to impose adequate punishment for these crimes.