R v Turvey
[2018] SASCFC 68
•25 June 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TURVEY
[2018] SASCFC 68
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Doyle)
25 June 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to one count of unlawful sexual intercourse with a person under the age of 14 years, six counts of unlawful sexual intercourse with a person under the age of 17 years, three counts of producing child exploitation material and one count of possessing child exploitation material.
The offending related to two victims, LA and MS, both of whom were teenage girls at the time. Over a period of approximately ten months from mid-2013 to about April 2014, the appellant engaged in sexual activity with each of the victims independently, and on one occasion in the presence of each other. On each occasion the sexual activity occurred following some form of inducement to the victims in the form of money, alcohol and/or cannabis. The appellant filmed and photographed his sexual activity with each of the victims. There was no suggestion that the videos and photographs of the sexual activity were distributed or that the appellant had intended to distribute them.
On 12 July 2016, prior to being sentenced for the offending relating to LA and MS, the appellant was sentenced for offending relating to another teenage girl, JF. That offending was of a similar nature to the offending relating to LA and MS. The appellant was sentenced (by a different sentencing judge) for the offending against JF to four years imprisonment with a non-parole period of 24 months.
For all the offences relating to LA and MS, the sentencing judge commenced with a single head sentence of fourteen years imprisonment. After reducing the sentence for the appellant’s guilty pleas, the sentencing judge imposed a head sentence of nine years 10 months. The sentencing judge ordered that the sentence be served cumulatively on the sentence imposed for the offending relating to JF, resulting in a head sentence of 13 years and 10 months. The sentencing judge ordered that the non-parole period be extended by six-and-a-half years, resulting in a total non-parole period of eight and a half years.
The appellant appeals on the sole ground that the sentence imposed is manifestly excessive.
Held per Doyle J (Nicholson J agreeing), allowing the appeal:
1. The sentence imposed, which commenced with a notional starting point of 14 years, was manifestly excessive.
2. On resentencing, it is appropriate to commence with a notional starting point of 11 years.
3. After reductions for his pleas of guilty, it is appropriate that the appellant be resentenced to seven years and nine months to be served cumulatively on the sentence currently being served by the appellant and that the non-parole period be extended by four years and six months, resulting in a total non-parole period of six years and six months.
Per Lovell J, dissenting:
1. A starting point of 14 years imprisonment was within the range available to the Judge.
House v The King (1936) 55 CLR 499; Hili v The Queen (2010) 242 CLR 520; R v W, PL [2017] SASCFC 119, applied.
R v D (1997) 69 SASR 413; R v Chesterman [2017] SASCFC 31, distinguished.
R v Turvey [2017] SASCFC 28; R v MJJ; R v CJN (2013) 117 SASR 81, discussed.
R v D (1997) 69 SASR 413; R v E, AD (2005) 93 SASR 20; R v Y, DB [2007] SASC 58; R v Bonython-Wright [2013] 117 SASR 410; R v C, M [2014] SASCFC 62; R v Cashion [2014] SASCFC 138; R v Elliott [2016] SASCFC 11, considered.
R v TURVEY
[2018] SASCFC 68Court of Criminal Appeal: Nicholson, Lovell and Doyle JJ
NICHOLSON J: I agree with the reasons of Doyle J.
LOVELL J:
Background
I have had the advantage of reading the judgment of Doyle J. I gratefully adopt his summary of the facts of this matter. Unfortunately I am unable to agree with his conclusion. I would dismiss the appeal. My reasons follow.
Sentence
The Learned Sentencing Judge, in my view, adopted the correct sentencing principles when approaching her task. The appellant accepted that position and relied only on the contention that the sentence imposed was manifestly excessive. The appellant contended that the sentence was unreasonably high or plainly unjust in the sense explained in House v The King.[1]
[1] (1936) 55 CLR 499 at 504-505.
Before turning to the facts in detail, the Learned Sentencing Judge briefly summarised the appellant’s offending as follows:
Over a period of about 10 months you engaged in a sexual relationship with each of the girls independently and on occasion in the presence of each other. You were also involved in filming and photographing your sexual activity with each girl for, in your words, your own personal pleasure. On each occasion you provided each victim with some form of inducement, including money and on one occasion, cannabis, to have sexual intercourse with you or to pose naked for you. You were aged 22 and 23 at the time of the offending whilst both your victims were teenagers.
…
Your offending was undoubtedly serious. You were considerably older than both your victims. You were involved in a course of conduct of sexual activity with each of your victims over a period of months. Your sexual offending was aggravated by the fact that you filmed and photographed much of your sexual activity with each victim. Furthermore, you offended against each girl in the presence of each other and encouraged each girl to perform sexual acts on the other in your presence for your own sexual gratification. Your offending has unsurprisingly had a terrible impact on both victims, which is ongoing.
The Learned Sentencing Judge noted that the case of R v D[2] provided guidance as to the appropriate penalty, particularly given that the offending against each victim was not isolated but involved multiple offences committed against a background of similar conduct over a period of some months. Further, the Judge noted that there were “additional serious features” to the overall offending in that the appellant offered inducements of money and on one occasion at least, cannabis. She further noted that the appellant filmed, photographed and stored images of each victim engaging in sexual activity with himself and also filmed one victim performing sexual acts on the other in his presence. The appellant also filmed himself engaging in sexual acts with each victim in the presence of the other.
[2] R v D (1997) 69 SASR 413.
When the appellant’s two mobile phones were seized by police and later examined, 972 images or videos depicting the abovementioned matters were found stored on the phones. The Learned Sentencing Judge observed in her remarks that the victim MS:
[U]nderstandably, expressed her fear that the photos and images you took of her will emerge in the public domain on the Internet. Your offending has caused her great distress and has had an ongoing adverse effect on her schooling and relationships, requiring counselling. Similarly, LA has expressed her distress at your conduct and the ongoing terrible impact of your offending on her daily life. She continues to suffer nightmares and anxiety as a result of your offending.
Finally the Judge noted that on 12 July 2016 the appellant had been sentenced to a period of four years imprisonment for the offences of possessing child pornography, producing child pornography, and unlawful sexual intercourse with a person under 14 years, that offending occurring between 23 June 2014 and 31 August 2014.
Against that background the Learned Sentencing Judge, using s 18A of the Sentencing Act to impose one sentence reflecting the criminality, stated that she would have imposed a sentence of 14 years imprisonment. However, she reduced that sentence by almost 30% to take into account the early guilty plea of the appellant. That left a sentence of nine years and 10 months imprisonment for the offending which the Judge ordered be served cumulatively on the current sentence of four years. The final sentence taking into account those matters was 13 years and 10 months imprisonment. Having had regard to the personal circumstances of the appellant, the Learned Sentencing Judge fixed a non-parole period of eight years and six months imprisonment commencing from 12 June 2016.
Discussion
It is a primary policy of the criminal law that in cases of child exploitation paramount consideration is given to the need for general and personal deterrence.[3]
[3] Criminal Law (Sentencing Act) 1988 (SA), s 10(2)(c).
In R v MJJ; R v CJN, Kourakis CJ said:[4]
… There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden. There is also a great social cost to the community. Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development. It also generates increasing suspicion and sensitivity about completely innocent behaviours. The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.
[4] (2013) 117 SASR 81 at 102 [84].
In R v Turvey Hinton J observed that:[5]
those who choose to sexually abuse children can expect sentences bordering on the severe. Further, the fact that an abuser has not previously been imprisoned, or is of prior good character, will, generally, carry little weight.
[5] [2017] 127 SASR 425 at 451 [128] (Nicholson and Lovell JJ agreeing).
The principles enunciated in R v D are relevant.[6] The sexual abuse of the two young teenage victims occurred over a period of approximately 10 months and was extremely serious misconduct. What makes this conduct even more serious is the filming of the sexual acts as described earlier. It was accepted that there was no intention by the appellant to disseminate any of the pornography produced; it was produced and retained only for his sexual gratification at a later time. However the victims are clearly concerned that the photographs and videos the appellant took of them may emerge in the public domain at a later time. They will have to live with that fear for the rest of their lives. The production of these images and the number of images that the appellant retained in his possession are serious aggravating features of his conduct. The Judge clearly took into account the factors personal to the appellant, including his age, when arriving at the appropriate sentence.
[6] R v D (1997) 69 SASR 413.
While a starting point of 14 years imprisonment for all of this offending is a severe sentence, it was in my view within the range available to the Judge.
The Judge made that sentence cumulative upon the expiration of the four years imprisonment the appellant was serving for the subsequent offending that was of a very similar nature. When making that final order the Judge had regard to the principle of totality, but declined to make any reduction on that basis. In my view the Judge was correct in adopting that approach. The Judge was required to look at the totality of the appellant’s conduct. The overall conduct shows an alarming and disturbing pattern of behaviour by the appellant of sexually exploiting young teenage girls, including the production and retaining of pornographic images of his conduct.
The final order of imprisonment and non-parole period were within the range available to the Judge.
I would dismiss the appeal.
DOYLE J: The appellant pleaded guilty to the following offences:
· one count of unlawful sexual intercourse with a person under the age of 14 years[7] (count 7) (maximum penalty life imprisonment);
· six counts of unlawful sexual intercourse with a person under the age of 17 years[8] (counts 1, 3, 8, 14, 16 and 22) (maximum penalty 10 years imprisonment);
· three counts of producing child exploitation material[9] (counts 9, 17 and 23) (maximum penalty 10 years imprisonment); and
· one count of possessing child exploitation material[10] (count 24) (maximum penalty five years imprisonment).
[7] Contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
[8] Contrary to s 49(3) of the CLCA.
[9] Contrary to s 63A of the CLCA.
[10] Contrary to s 63A(1)(a) of the CLCA.
The offending occurred between June 2013 and April 2014 and related to two victims, LA and MS, both of whom were teenage girls. Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), the sentencing judge started with a head sentence for the entirety of the offending of 14 years imprisonment. Her Honour reduced this by approximately 30 per cent on account of the appellant’s guilty pleas, giving a head sentence of nine years 10 months imprisonment.
At the time of sentencing for these offences (“the present offending”), the appellant was serving a sentence of imprisonment for some similar offending in relation to a third victim, JF, who was also a teenage girl. This other offending (“the subsequent offending”) occurred in June 2014. For the subsequent offending, the appellant received a head sentence of four years imprisonment, with a non-parole period of two years.
The sentencing judge ordered that the sentence of imprisonment for the present offending be served cumulatively on the head sentence of four years imprisonment for the subsequent offending, resulting in an overall head sentence of 13 years 10 months imprisonment. Her Honour extended the existing non-parole period of two years by six years six months, giving an overall non-parole period of eight years six months.
The appellant appealed on the sole ground that the sentence imposed was manifestly excessive.
The appeal was heard on 11 April 2018. After reserving judgment, the Court on 20 April 2018 made orders allowing the appeal, setting aside the sentence imposed, and resentencing the appellant, using s 18A of the Sentencing Act, to a sentence of seven years nine months imprisonment. The Court indicated that this sentence had been determined by adopting a starting point of 11 years imprisonment for the present offending, which was then reduced by approximately 30 per cent on account of the appellant’s guilty pleas. The Court ordered that this sentence be served cumulatively on the sentence of four years imprisonment for the subsequent offending, giving an overall head sentence of 11 years nine months imprisonment. The Court extended the existing non-parole period of two years by four years six months, resulting in a new non-parole period of six years six months.
These are my reasons for joining in the making of those orders.
Factual background
In about mid-2013, the appellant made a friend request to the victim LA on Facebook. LA did not know the appellant. However, she was a cannabis user, and having seen images of cannabis and alcohol on the appellant’s Facebook page accepted his request. The appellant and LA subsequently exchanged a number of messages. This included messages in which LA offered to pay the appellant for cannabis. The appellant’s response was to the effect that he would only accept sex and not money by way of payment. In other messages the appellant told LA that she was sexy and asked to have sex with her.
LA was born in January 2000, and so was 13 years of age at the time of the above. At some point after the commencement of these Facebook messages, LA introduced the appellant to her friend, MS. MS was born in June 1999 and so was 14 years of age at the time. She was also a cannabis user.
The appellant was 22 and 23 years of age during the period of his offending that followed. He was sentenced on the basis that while he did not know the precise ages of LA and MS, he acknowledged that he was aware they were under-age.
By way of overview of the present offending, over a period of about 10 months commencing in mid to late 2013 and ending in about April 2014, the appellant engaged in sexual activity with each of the two girls independently, and on one occasion in the presence of each other. The appellant filmed and photographed his sexual activity with each girl. He said that he did so for his own personal pleasure. On each occasion, the sexual activity and posing for photographs occurred following some form of inducement to the victims; generally in the form of money and alcohol, although on one occasion cannabis.
The subsequent offending occurred on 23 June 2014. The victim of that offending was a teenage girl, JF, who was 13 years of age. The subsequent offending involved one count of possessing child exploitation material, one count of producing child exploitation material and one count of unlawful sexual intercourse with a person aged under 14 years. All three counts related to one incident, involving the appellant using a vibrator to penetrate JF’s vagina, and taking a series of photographs of his doing so.
On 31 August 2014, the appellant was arrested for the subsequent offending against JF. The police seized his mobile phone, and upon examining material extracted from the phone, identified the victims of the present offending, LA and MS. As a result of further investigations, the appellant was arrested for the offences against MS on 16 May 2016, and for the offences against LA on 2 August 2016.
During the course of the June 2016 sentencing submissions in respect of the subsequent offending, the appellant made an application to adjourn the sentencing process to enable him to attempt to expedite the proceedings relating to MS so that he could be sentenced at the one time for all offences with which he had by then been charged. The application was opposed by the prosecution, and refused by the Court. He was sentenced for the subsequent offending on 12 July 2016.
For the three offences comprising the subsequent offending, the sentencing judge imposed a head sentence of four years imprisonment, and fixed a non-parole period of two years. The appellant had been convicted of the unlawful sexual intercourse offence after a trial and so received no discount for a plea, but received a discount of 10 per cent following his plea to the child exploitation material offences.
On appeal, this Court held that the sentencing judge erred in sentencing the appellant on the basis that he knew that JF was less than 14 years of age, as opposed to being reckless as to her age (that is, he did not form any view as to her actual age, but ran the risk she was under the age of 14). However, having formed the view that upon any resentencing it would nevertheless have imposed a greater sentence, the Court dismissed the appeal and did not disturb the sentence that had been imposed.
The appellant was sentenced for the present offending by a different sentencing judge on 7 November 2017.
Circumstances of the offending
It is appropriate to describe the various offences comprising the present offending in some greater detail.
Count 1 involved an offence of unlawful sexual intercourse committed between 30 June 2013 and 1 August 2013. The victim was MS, and the offence occurred shortly after her fourteenth birthday. It occurred after LA organised for MS to have sex with the appellant in exchange for cannabis. The appellant collected MS in his vehicle and drove her to a secluded location in Port Adelaide. While in the back seat of the vehicle, the appellant caused MS to perform fellatio upon him and then had penile-vagina sexual intercourse with her. The latter was the subject of count 1. The appellant used his mobile phone to film, and take photographs of, this sexual activity with MS. Despite MS at one point querying what he was doing with his phone, and asking him to stop, he did not do so. After returning MS to a location near her home, the appellant gave her a couple of bags of cannabis for having had sexual intercourse with him.
Count 3 involved an offence of unlawful sexual intercourse committed between 31 July 2013 and 1 September 2013. The victim was again MS. The appellant collected MS from her father’s house and drove her to a remote location in the north eastern suburbs. The appellant again had penile-vaginal sexual intercourse with MS. He filmed and took photographs of his sexual activity with MS. Afterwards the appellant gave MS money to buy cigarettes for having had sexual intercourse with him.
Counts 7, 8 and 9 all arose out of an incident involving both victims. On 10 November 2013 the appellant collected both MS and LA in his vehicle and took them to his house. LA and MS agreed to have sex with the appellant in exchange for a bottle of alcohol each. The appellant told the victims to masturbate while he filmed and took photos of them doing so. When the appellant was asked why he was filming them he said it was for his “personal pleasure”. They asked him to stop doing so. However, the appellant promised to pay them $100 extra each, and continued to film and take photographs. The appellant then caused LA to masturbate him. He also directed MS to digitally penetrate LA and perform cunnilingus on her. The appellant then performed cunnilingus on LA and had penile-vaginal sexual intercourse with her (count 7).[11] Following this, the appellant had penile-vaginal sexual intercourse with MS (count 8). MS and LA then alternated between performing fellatio upon the appellant, and the appellant having penile-vaginal sexual intercourse with each of them. The incident took place over a period of about an hour, and was captured in images and video stored on the appellant’s mobile phone and memory card (count 9).
[11] LA was 13 years of age at the time of this offence, whereas she was 14 years of age at the time of the other count of unlawful sexual intercourse involving her (count 14).
Count 14 involved the offence of unlawful sexual intercourse. The victim was LA. The appellant took LA to another person’s home between 31 January 2014 and 1 March 2014 and filmed himself touching LA on the breasts and vagina, and having penile-vaginal sexual intercourse with her. He gave LA $100 for having sexual intercourse with him.
Counts 16 and 17 occurred on 10 March 2014 and involved the offences of unlawful sexual intercourse with MS and producing child exploitation material. They related to an occasion when the appellant had penile-vaginal sexual intercourse with MS in the back seat of his vehicle. The latter related to a video extracted from the appellant’s memory card depicting this activity. The appellant was heard in the video instructing MS as to things to say, and how to position her hands. The images extracted from the appellant’s phone also depicted MS posing naked next to the appellant’s vehicle in an outdoor setting. The appellant could be seen in some of those images touching MS’s breast and bending her over in front of him, and giving MS directions as to how to position her body.
Counts 22 and 23 occurred on 7 April 2014 and involved the offences of unlawful sexual intercourse with MS and producing child exploitation material. The latter involved images extracted from the appellant’s phone and memory card depicting MS posing naked by herself, and images showing the appellant having penile-vaginal intercourse with her.
The appellant also admitted engaging in uncharged sexual intercourse with MS. Images and a video extracted from his mobile phone depicted MS performing fellatio on the appellant, MS posing naked, and the appellant having penile-vaginal intercourse with MS. These images were taken on 13 March 2014 and were the subject of discontinued charges (formerly counts 18 and 19). Other images and a video extracted from the appellant’s mobile phone depicted MS posing naked for the camera, and the appellant directing her to pose in certain positions on 30 March 2014. There were also images which depicted MS posing naked in an outdoor setting on 2 April 2014.
The appellant also admitted engaging in uncharged sexual conduct with LA, which related to images extracted from his mobile phone showing him and LA performing oral sex on each other, and the appellant having penile-vaginal sexual intercourse with LA. There was also a video extracted from the appellant’s memory card which showed him and LA naked in an outside area, with LA performing fellatio upon him. These were the subject of discontinued charges, formerly counts 20 and 21.
Count 24 involved the offence of possessing child exploitation material. The relevant images and videos were extracted from two mobile phones seized from the appellant’s home on 31 August 2014. The images and videos the subject of this charge related to MS and LA only, and are described in the declarations provided by the prosecution. In total there were 972 images or videos ranging over categories 1 to 4 of the “Oliver scale”. These images included those the subject of the charged offences of producing child exploitation material which were counts 9, 17 and 23. As the sentencing judge noted, the appellant had been sentenced in 2016 for the subsequent offending which related to the possession and production of other images of another child (JF) extracted from the same telephone.
Both MS and LA provided victim impact statements. MS expressed her fear that the photos and images taken of her would emerge in the public domain on the internet. The appellant’s offending has caused her great distress and has had an ongoing adverse effect on her schooling and relationships. She has required counselling and assumes she will continue to require it. Similarly, LA expressed her distress at the appellant’s conduct, and the ongoing terrible impact it has had on her daily life. She said that she continues to suffer nightmares and anxiety as a result of the appellant’s offending.
Personal circumstances of the appellant
As mentioned, the appellant was 22 and 23 years of age at the time of his offending. He was 26 years of age at the time of sentencing.
In terms of antecedents, the appellant has prior convictions in 2010 and 2011 respectively for assault and damaging property. Both lots of offending were dealt with on the basis of good behaviour bonds and are not material in the context of the present sentencing exercise.
The appellant was born in Sri Lanka. He was placed in an orphanage as an infant, and was adopted when two months old and brought to Australia by his adoptive parents. He has two older siblings and was raised in a loving and supportive home. He was educated at Windsor Gardens Vocational College, and completed year 10. He initially obtained full time employment as a cabinet maker. A year later he commenced work at an events company. He continued working there for seven years until his incarceration as a result of the subsequent offending.
The appellant has a young son. He has sole custody of his son, who is now in the care of the appellant’s adoptive parents. The son’s mother has supervised access once a fortnight. As the sentencing judge noted, the appellant’s son is undoubtedly important to him and is likely to provide a motivation not to reoffend.
The appellant pleaded guilty at an early stage in the proceedings, and through his counsel expressed contrition and remorse for his offending. The appellant’s counsel contended that at the time of the offending the appellant did not fully appreciate the impact his unlawful conduct would have upon his young victims. The offending was said to reflect his own immaturity at the time.
Sentencing Remarks
The sentencing judge summarised the circumstances of the offending and the appellant’s personal circumstances in terms similar to the above.
Her Honour described the appellant’s offending as being of the utmost seriousness. It involved a course of sexual activity with each of the victims over a period of months. The appellant was considerably older than both victims. His offending involved him taking advantage of two young teenagers, and their immaturity and vulnerability to his inducements by way of alcohol, drugs and money. He engaged in this conduct for his own sexual gratification.
Whilst noting that the appellant did not hold any formal position of trust or authority in respect of either victim, the sentencing judge held that the decision of this Court in R v D[12] still provided some guidance as to the appropriate penalty in this case given that the offending against each victim was not isolated but rather involved multiple offences committed against a background of similar conduct over a period of months. The sentencing judge explained that the appellant’s sexual offending was also aggravated by reason of it including him offending against each victim in the presence of each other, and him directing each victim to perform sexual acts on the other for his own sexual gratification. Her Honour emphasised the unsurprisingly terrible, and ongoing, impact of the offending on the victims.
[12] R v D (1997) 69 SASR 413.
The sentencing judge proceeded by way a single sentence under s 18A of the Sentencing Act, having summarised the appellant’s offending as involving one multifaceted course of criminal conduct. Her Honour observed that in sentencing for offences such as the present ones, the courts must give proper effect to the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence.
The sentencing judge concluded that but for the appellant’s pleas of guilty, she would have imposed a head sentence of 14 years imprisonment. Her Honour reduced that by almost 30 per cent for the appellant’s guilty pleas to nine years 10 months, which was to be served cumulatively on his current head sentence for the subsequent offending of four years, resulting in an overall head sentence of 13 years and 10 months.
After announcing this head sentence, the sentencing judge said:
In fixing that head sentence I have had regard to the fact that you are currently serving a sentence for subsequent offending which has a close connection in time with this offending and which was motivated by similar factors such as your immature inclinations. Furthermore, I am told that since being incarcerated last year you have matured and commenced the process of rehabilitation such that principles of personal deterrence now have less of a role to play. The head sentence for this offending is accordingly lower than I would have ordinarily imposed had you not been serving your current sentence.
I have also considered the question of totality as a final check on the head sentence. However, in my view, your total head sentence is proportionate to the very serious nature and breadth of your offending. I do not think there is any basis to reduce it on the grounds of totality. I do not think that it is so crushing as to call for the merciful intervention of the court.
Turning to the non-parole period, the sentencing judge had regard to the appellant’s relative youth, his previous good work history and his expressions of remorse and contrition. Her Honour extended the existing non-parole period by six years six months, resulting in an accumulated head sentence of 13 years 10 months and non-parole period of eight years six months, to commence from 12 June 2016.
Manifest excess
The sole ground of appeal relied upon by the appellant was that the sentence imposed was manifestly excessive; that is, it was unreasonably high or plainly unjust in the sense required by House v The King.[13]
[13] House v The King (1936) 55 CLR 499 at 504-505.
In considering the issue of whether the sentence imposed by the sentencing judge was manifestly excessive, I bear in mind the approach to the identification of manifest excess required by the High Court in Hili v The Queen.[14] This requires a consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[15] In the context of sentencing for multiple offences, regard must also be had to the need to ensure proportionality in the overall sentence through the application of one or more of mechanisms available to the sentencing judge.[16] But ultimately there is a limit to the amount of analysis that may be brought to bear. Often manifest excess will be a conclusion that does not admit of lengthy exposition.[17]
[14] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
[15] R v Morse (1979) 23 SASR 98.
[16] R v W, PL [2017] SASCFC 119 at [38]-[50], [56].
[17] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
In developing the contention that the sentence imposed in this case was too high, or outside the range of sentences that might reasonably have been imposed for the present offending, the appellant’s counsel focused upon the appellant’s young age, and the issue of proportionality or totality.
The former is obviously a relevant factor. The appellant’s young age was relevant both in terms of his relative immaturity at the time of his offending, and in terms of his prospects of rehabilitation. It was not suggested that the sentencing judge overlooked these matters, but rather that in combination with all of the other relevant matters in this case they ought to have resulted in a lesser sentence.
As to the latter, the focus of the appellant’s submissions was upon the passage from the sentencing remarks extracted above. It was contended that this passage left it unclear precisely how, and to what extent, the sentencing judge had regard to the need to ensure proportionality between the sentence imposed and the overall criminality of the appellant’s offending, including the subsequent offending.
The first paragraph from this passage of the sentencing remarks is somewhat ambiguous. It mentions two relevant considerations, namely the connection (in time and nature) between the present offending and the subsequent offending, and the lesser significance of personal deterrence given the appellant’s incarceration (and commencement of rehabilitation) as a result of the subsequent offending. Her Honour then said that the head sentence for the present offending was accordingly lower than she would ordinarily have imposed had the appellant not been serving his current sentence.
On one view of this paragraph, her Honour has in fact revealed an unidentified starting point in excess of 14 years, which was then reduced by an undisclosed amount in order to ensure proportionality between the sentence imposed and the overall criminality of the appellant’s conduct (including the subsequent offending). If this is an accurate description of her Honour’s remarks, then it may be open to objection on the grounds of a lack of transparency; that is, a failure to reveal the (true) notional starting point used in the sentencing exercise. The location of this paragraph after the announcement of the starting point of 14 years, and the suggestion of a particular reduction or adjustment, albeit of an undisclosed extent, is perhaps supportive of this construction.
However, upon close analysis, the better construction appears to be that her Honour was merely describing an aspect of the instinctive synthesis undertaken in arriving at the starting point of 14 years, rather than revealing an undisclosed adjustment to ensure proportionality. It would have been perfectly appropriate for the sentencing judge to take into account as an aspect of this task of synthesising the relevant circumstances, as a relevant circumstance personal to the appellant, that he was currently serving a term of imprisonment and the effect that this might have in lessening the need for personal deterrence. In support of this construction is the fact that her Honour expressly mentions both proportionality and totality in the next paragraph of her remarks, suggesting it was at that subsequent stage (and only at that stage) that her Honour took into account the concern to ensure proportionality in light of the subsequent offending, and the need to ensure regard was had to the principle of totality. If this is the correct construction of her Honour’s remarks, then any objection in relation to lack of transparency would fall away.
While I prefer the latter construction, I do not consider it necessary to resolve this issue of construction. The appeal was argued primarily on the basis of manifest excess rather than any error of principle in her Honour’s approach, and I am content to approach the matter in that way.
The appellant fell to be sentenced for the offences of unlawful sexual intercourse, together with offences for the production and possession of child exploitation material. The offending was undoubtedly very serious, as reflected by the maximum penalties (set out earlier) for each of these offences, and demanded a strong deterrent by way of sentencing response.[18]
[18] See, for example, R v MJJ; R v CJN (2013) 117 SASR 81 at [84] as to the harm caused by sexual offending against children and the need for a strongly deterrent sentencing response.
The offending involved a course of sexual offending over a period of approximately 10 months. It involved two victims, both of whom were young teenage girls. One of the counts of unlawful sexual intercourse occurred when the victim, LA, was only 13 years of age. The appellant, at 22 and then 23 years of age, was significantly older than his victims, although the differential in age is not as marked as in some other cases involving sexual offending against children. The appellant’s relatively young age, and consequential immaturity, likely contributed to his lack of appreciation at the time of his offending of the extent and duration of its impact upon the victims.
The present case did not involve the formal relationship of trust and authority that existed in R v D,[19] nor was there an analogous relationship of enhanced trust or authority arising merely from the appellant’s age, or the differential between the ages of the appellant and his victims.[20]
[19] R v D (1997) 69 SASR 413.
[20] cf R v Chesterman [2017] SASCFC 31 at [46].
On the other hand, there was a relationship of power and vulnerability between the appellant and his victims that went beyond that which might ordinarily exist in the case of young teenage victims. It arose by reason of the victims’ obvious interest in obtaining cannabis, alcohol and money, and the appellant’s access to the same. The appellant repeatedly exploited the resulting relationship of power and vulnerability by offering these things as inducements for the victims submitting to sexual activity, and allowing themselves to be photographed and filmed in the course of this activity, in circumstances where they would not otherwise have been prepared to do so.
Thus, while it might be said that the victims were to some extent willing participants in the sexual activity that occurred, this is of limited significance given both the relationship of power and vulnerability that I have described, and the law’s general concern to ensure that children are protected from adults who might take advantage of their immature inclinations. It is also relevant that this was not a case involving a relationship of genuine affection by the appellant for his young victims. While his offending was no doubt in part a product of his own relative immaturity, it was motivated by his own sexual gratification rather than any affection for the victims.
The sexual offending was also aggravated by reason of some of the counts involving offending against one victim in the presence of the other, and the appellant directing the victims to perform sexual acts on each other.
It is also significant in assessing the seriousness of the sexual offending that the appellant caused the relevant conduct to be photographed and filmed. At the same time, given the separate counts in relation to the production and possession of child exploitation material, it was necessary to ensure no overlap in the conduct taken into account in respect of the various offences.
Turning to the production and possession of child exploitation material offences in their own right, it is appropriate to have regard to the matters canvassed at some length in the recent decision of this Court arising out of the appellant’s sentencing for the subsequent offending.[21] It is not necessary to repeat all that was said in that case. It is sufficient to note the seriousness of this type of offending given the immediate harm to, and exploitation of, children that it involves; the significant risk it poses of repeated exploitation and victimisation by the dissemination of images; and the consequential creation of a market and its associated encouragement of others to sexually abuse and exploit children.[22] It is for these reasons that general deterrence necessarily assumes a significant role in sentencing for such offending.
[21] R v Turvey [2017] SASCFC 28 at [124]–[143].
[22] R v Turvey [2017] SASCFC 28 at [135].
In this case the gravity of the offending was high given that the material included images of penetrative sexual activity between an adult and child, and images of two children performing sexual acts on one another (as directed by the appellant). The victim impact statements also make it plain that the victims both experienced, and continue to experience, significant harm and trauma as a result of the offending. This harm and trauma has been exacerbated by their understandable fear and anxiety of being re-victimised through dissemination of the images of them.
On the other hand, in arriving at an appropriate sentence it is relevant that there was no evidence to suggest that the appellant did, or intended to, disseminate any of the child exploitation material that he produced or possessed, or to seek to make any financial gain from the production or possession of that material. He fell to be sentenced on the basis that he produced and possessed this material for his own prurient interest and sexual gratification. Thus, as a matter of fact in this case, the risk of re-victimisation through dissemination has not eventuated. It is also relevant that the child exploitation material contained only images of LA and MS, with the result that there were only two victims of the present offending.
As the above consideration of the circumstances of the offending demonstrates, a significant term of imprisonment was necessary. On the other hand, there were some factors in the appellant’s personal circumstances that also required some consideration and warranted some measure of leniency. I have mentioned the appellant’s relatively young age. This, combined with his good work history, the absence of any relevant prior offending, his cooperation and early guilty pleas, his expressions of remorse and contrition, and the incentive of being able to at some point in the future care for his son, all meant that the appellant had relatively good prospects of rehabilitation. It was also significant that the appellant was already serving a term of imprisonment for the similar (but later) offences comprising the subsequent offences. While the need for general deterrence remained significant, the combination of the above materially reduced what might otherwise have been required, particularly by way of personal deterrence.
It would have been open to the sentencing judge to nominate notional head sentences for the individual offences, or to have grouped the offences in some way (for example, by reference to the victims). Indeed, it is generally desirable to do so, even when utilising s 18A of the Sentencing Act. However, given the large number of offences, and their overlap in terms of timing, nature and victims, there was a risk of unnecessary complexity, if not artificiality, in proceeding this way. It was thus appropriate to proceed, as the sentencing judge did, by utilising s 18A and nominating a single starting point.
That starting point must of course reflect a proportionate response to the entirety of the offending. In this case I consider that this necessitated a significant measure of concurrency in relation to the penalties appropriate for each offence. It also required consideration of proportionality of the sentence to be imposed for the present offending in light of the sentence already imposed for the subsequent offending, given its connection in terms of its nature and timing.
I have had regard to the various decisions of this Court referred to in the submissions of parties, including in a helpful schedule provided by the appellant’s counsel.[23] But as counsel acknowledged, while instructive in a general way, there is limited assistance that may be obtained from a consideration of the sentences imposed in other cases. The difficulty, and consequential undesirability, of comparison with sentences in other cases is exacerbated in the present case by the combination of the sexual offending with the offending involving child exploitation material (a feature that was not present in most of the cases to which we were referred).
[23] Including, for example, R v E, AD (2005) 93 SASR 20; R v Y, DB [2007] SASC 58; R v Bonython-Wright (2013) 117 SASR 410; R v C, M [2014] SASCFC 62; R v Cashion [2014] SASCFC 138; R v Elliott [2016] SASCFC 11.
As mentioned earlier, consideration of a submission of manifest excess will often not admit of any detailed analysis, or lengthy exposition. In this case, bearing in mind all of the above, I have come to the conclusion that the starting point of 14 years imprisonment for the present offending was simply too high. When considered in light of the four year head sentence already being served by the appellant for the subsequent offending, and in particular the measure of personal deterrence inherent in that sentence, I consider that a starting point of 14 years did not adequately reflect the full range of circumstances that I have outlined. Rather, I consider it was an unreasonably high starting point, and resulted in an unreasonably high sentence.
It is for these reasons that I considered it appropriate to allow the appeal.
In re-sentencing the appellant it is of course appropriate to take into account all that I have said above. Like the sentencing judge, and for the reasons I have given, I consider it appropriate, utilising s 18A of the Sentencing Act, to nominate a single starting point for the entirety of the present offending.
In my view, an appropriate starting point for this offending is 11 years imprisonment. I would reduce this by almost 30 per cent on account of the appellant’s early pleas of guilty to seven years nine months imprisonment. I consider it appropriate that this be served cumulatively on, and hence to commence at the expiration of, the sentence of four years imprisonment currently being served in respect of the subsequent offending and which commenced on 12 July 2016.
Having already had regard to the need to ensure proportionality between the sentence imposed and the overall offending (including the subsequent offending) in arriving at the starting point of 11 years under s 18A of the Sentencing Act, I do not consider that any reduction or adjustment is necessary on account of totality or otherwise.
Having particular regard to the circumstances personal to the appellant that I have outlined, I consider it appropriate to extend the existing non-parole period by four years six months, giving an overall non-parole period of six years six months.
It is for these reasons that I joined in the orders made by the Court on 20 April 2018, and summarised at the outset of these reasons.
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