R v WILLIAMS - [2015] SASCFC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLIAMS
[2015] SASCFC 66
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
8 May 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION
Appeal against sentence.
The appellant was sentenced for two counts of procuring a child to engage in sexual activity contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of making a child amenable to sexual activity contrary to s 63B(3)(b) of the CLCA. The maximum penalty with respect to each offence is 10 years imprisonment.
There were two victims of the offending. Counts 1 and 2 involving contraventions of s 63B(3)(a) concern victim A. Count 3 involving a contravention of s 63B(3)(b) concerns Victim B. The appellant pleaded guilty to all three counts. The sentencing judge imposed a custodial sentence of three years with a non-parole period of 16 months. In relation to offences against A the learned sentencing judge imposed one sentence of imprisonment of two years and three months pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). In relation to the offence against B the sentencing judge imposed a cumulative sentence of imprisonment of nine months. The judge declined to suspend the sentence finding good reason did not exist to do so.
Whether the head sentence and the non-parole period are manifestly excessive having regard to the nature and circumstances of the offending, the appellant's personal circumstances, his good prospects of rehabilitation and the need for appropriate treatment for the problems underpinning his sexual offending which is unavailable in prison.
Whether the judge erred in failing to find good reasons existed to suspend the sentence imposed by reference to the appellant's youth and prospects of rehabilitation.
Held per Stanley J (Kourakis CJ and Gray J agreeing) allowing the appeal:
1. It was open to the judge to find that good reason to suspend the sentence did not exist. The exercise of the judge's discretion has not miscarried (at [25]).
2. A head sentence of 3 years is manifestly excessive given the nature of the offending and the appellant’s personal circumstances (at [29]).
3. A non-parole period of 16 months is manifestly excessive. The public interest in the protection of children will be better served by the appellant spending a longer period on parole, under supervision, undergoing appropriate treatment and intervention, in the hope of preventing further offending of this kind (at [31]).
4. Appeal allowed. A single term of imprisonment is fixed in respect of all three counts pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The sentence is fixed using a commencement point of two years imprisonment reduced to 21 months and two weeks after allowing for the plea of guilty. A non-parole period of eight months is imposed (at [33]).
Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a), s 63B(3)(b); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10(4), referred to.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; R v D (1997) 69 SASR 413; R v Quinn (2012) 114 SASR 354; R v Schultz [2010] SACFC 47; The Queen v Morse (1979) 23 SASR 98, considered.

R v WILLIAMS
[2015] SASCFC 66
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: I agree with the orders proposed by Stanley J. I do not wish to add to his reasons.
GRAY J. I agree with the orders proposed by Stanley J. I do not wish to add to his reasons.
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant was sentenced for two counts of procuring a child to engage in sexual activity contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of making a child amenable to sexual activity contrary to s 63B(3)(b) of the CLCA. The maximum penalty with respect to each offence is 10 years imprisonment.
There were two victims of the offending. Counts 1 and 2 involving contraventions of s 63B(3)(a) concern victim A. Count 3 involving a contravention of s 63B(3)(b) concerns Victim B. The appellant pleaded guilty to all three counts.
The sentencing judge imposed a custodial sentence of three years with a non-parole period of 16 months. In relation to offences against A the learned sentencing judge imposed one sentence of imprisonment of two years and three months pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). In relation to the offence against B the sentencing judge imposed a cumulative sentence of imprisonment of nine months. The judge declined to suspend the sentence finding good reason did not exist to do so.
Circumstances of the offending
A was born on 25 June 1997. The appellant came to know A as he was a friend of A’s older sister. The appellant and A communicated on a regular basis online through Facebook and Skype. The two counts concerning A involve offending on 9 March 2012 and 10 October 2012. At the time, A was between 14 and 15 years old. The appellant was 19 years of age at the time of count 1 and 20 years of age at the time of count 2. The appellant knew A’s age. In substance the offending involved the appellant and A observing each other masturbate while engaging in sexualised conversation on the internet via a Skype connection. A engaged in this conduct at the urging of the appellant. The two offences are representative of a course of conduct. That conduct commenced in about March 2012 for a period of four months. The conduct ceased at the initiative of the victim. The conduct resumed in October 2012 at the initiative of the appellant but again ceased after a short period. At some stage during the course of this conduct the appellant sent A a number of images via Facebook showing various amounts of cash accompanied by the question: “What would you do for this?” or words to a similar effect.
B was born on 16 August 1996. The appellant came to know B through the football club for whom B played. The appellant was the coach of B's team. Against that background he sent messages to B on Facebook. The relevant offending occurred on 5 May 2013 when the appellant sent messages via Facebook to B suggesting they engage in oral sex. B was 16 years and eight months of age. At that time the appellant was 20 years of age. One message was an offer by the appellant that he pay B to get drunk with him in the context of prior messages suggesting that the appellant considered B might be amenable to sexual activity if he was drunk. Another message contained an offer from the appellant to pay B $500 if B would permit the appellant to ejaculate on him.
Circumstances of the appellant
The appellant was born on 13 July 1992. His parents separated when he was five years of age. He was raised by his mother who commenced a lesbian relationship when the appellant was in his early teens. He enjoyed a good relationship with his parents. He was educated to year 11. After leaving school he initially worked as a delivery driver and then found employment in the hospitality industry. In 2013 he obtained employment at a hotel in a managerial role. He continued in this employment until sentencing.
He had no prior criminal history.
He had experienced problems with alcohol abuse and he has described himself as having a "gambling problem".
He had been in two significant long-term heterosexual relationships.
At the time of sentencing the appellant had expressed his remorse and written a letter of apology to A for his offending. It is unclear whether a similar apology was written to B. If no letter of apology was written to B, the failure to do so was unexplained during sentencing submissions.
The judge received two reports from a forensic psychologist Dr Jack White. Dr White assessed the appellant as being of average intelligence. He considers there is evidence that the appellant has experienced sexual identity problems and sexual confusion issues. He is of the opinion that the appellant's offending was likely to be characteristic of a sexually‑confused individual struggling to come to terms with his own sexual identity. He considers that the appellant would benefit from a formal sex offender rehabilitation program at Owenia House.
By the time of sentencing, the appellant had indicated his preparedness to undertake such treatment.
The judge's sentencing remarks
The judge described the circumstances giving rise to the offending and the appellant's personal circumstances. In sentencing the appellant the judge went on to say:[1]
[1] Sentencing remarks of Judge Muscat delivered 17 October 2014 at 3-4.
In my view, your sexual behaviour toward the two boys is of great concern. Your sexual behaviour, as I have noted on a number of occasions already, was predatory in nature. You were clearly seeking to exploit both boys for your own sexual gratification.
You abused your relationship with A and your position of authority and trust as B’s coach, to commit your crimes upon each of them.
The law is clear that children require protection from sexual predators such as yourself. This is achieved through the imposition of a sentence which ensures that paramount consideration is given to the need for general and personal deterrence; that is, deterring others who are minded to act as you have done and deterring yourself from behaving like this again.
In my view, the circumstances of your offending are so serious as to warrant a prison sentence to be passed upon you in order to give effect to these sentencing considerations.
In relation to A, your two charges are representative of a course of similar sexual exploitation over a number of months. Whilst you cannot be punished and therefore, sentenced for any criminal acts which you have not been charged with, the two counts against A are not isolated instances of such behaviour against him. They place those offences in their proper context and indicate that personal deterrence is an important sentencing consideration. That you went on to attempt a repeat of similar behaviour with B is disturbing.
I will impose a single sentence of imprisonment to cover your crimes against A. You will be imprisoned for 30 months. I will reduce your sentence by three months on account of your pleas of guilty resulting in a sentence of two years and three months imprisonment.
For your crime against B you will be imprisoned for nine months reduced from 10 months for having pleaded guilty.
Both sets of offences are quite separate and distinct from the other. There is no connection between the two to justify anything other than an accumulation of the sentences.
Accordingly, you are imprisoned for a total of three years. I turn to the non-parole period to be fixed.
In recognition of your extreme youth and lack of criminal history I can extend leniency to you. I will fix the non-parole period at 16 months, which is a very low proportion of the sentence passed upon you.
I now turn to the question of whether good reason exists to suspend the sentence.
As I have remarked, your youth, lack of previous criminal record and guilty pleas are all very positive in terms of your rehabilitation. Also, your apology to the victims and your recognition of the seriousness of your offending and the need for you to receive sexual offender treatment augurs well for your rehabilitation.
On the other hand, the seriousness and repetition of the offences and the requirement for deterrence, both general and personal, militate against there being good reason to suspend the sentence.
I do not take any pleasure from sending young persons to prison with all the attendant negative consequences which flow from that.
You are in full-time employment and you have been vilified for your actions. However, our society rightly looks to its courts to protect children from sexual exploitation from others. Such crimes are reviled by our society, and rightly so.
I do not consider good reason exists to suspend your sentence. You will have to serve your time in gaol as a deterrent to yourself and others who are thinking about sexually exploiting any child.
Approach on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[2] where Doyle CJ said:[3]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[2] [2009] SASC 346, (2009) 266 LSJS 283.
[3] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[4] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,[5] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[4] (1936) 55 CLR 499.
[5] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
Submissions on appeal
The appellant submits that the sentencing judge erred in two ways. First, he submits that the head sentence and the non-parole period are manifestly excessive having regard to the nature and circumstances of the offending, the appellant's personal circumstances, his good prospects of rehabilitation and the need for appropriate treatment for the problems underpinning his sexual offending which is unavailable in prison. Secondly, he submits that the judge erred in failing to find good reasons existed to suspend the sentence imposed by reference to the appellant's youth and prospects of rehabilitation.
The respondent submits that there was no error in the sentence imposed. Given the relevant circumstances the head sentence and non-parole period are within the appropriate range and it was open to the sentencing judge to find good reason to suspend the sentence did not exist.
Consideration
This is undoubtedly serious offending. In my view the judge was correct in characterising the offending as predatory. There were elements of grooming and manipulation in the offending against both victims. The appellant exploited his position of trust in relation to A, which existed by reason of the relationship between them, and his position of authority in relation to B when he was his football coach.
This court has repeatedly emphasised that, in sentencing for sexual offences committed against children, paramount consideration should be given to the need for deterrence and punishment. In cases involving this kind of offending, where there has been a course of conduct by a person in a position of trust and authority, the starting point should be a sentence of imprisonment. Penalties should reflect community feelings of outrage and revulsion about offences of this type and the Court is to do what it can to protect children from such offending.[6] These principles are reinforced by the injunction found in s 10(4) of the Sentencing Act which requires that in sentencing for an offence involving the sexual exploitation of a child, paramount consideration is given to the need for general and personal deterrence. However, the the need for general and personal deterrence is to be weighed along with consideration of the gravity of the offending and the defendant's circumstances, including his or her prospects for rehabilitation.
[6] R v D (1997) 69 SASR 413; R v Quinn [2012] SASCFC 102 at [29], (2012) 114 SASR 354 at 361.
The appellant's personal circumstances include his youth. It is well accepted that the youth of an offender is a mitigating factor. In R v Schultz[7] White J said:[8]
This is because courts recognise that the young and immature are more prone to ill‑considered or rash conduct; and may not appreciate fully the nature, seriousness and consequences of the criminality involved in their conduct. It is also because they recognise the potential for young offenders to be redeemed and rehabilitated and because they consider the effect of incarceration in an adult prison is likely to impair, rather than improve, the young offender's prospects of rehabilitation.
A number of the authorities reflect these considerations. In R v Carroll, King CJ spoke of courts being "inclined to mercy in the case of young people facing prison for the first time", and in R v Weaver Bray CJ, Mitchell and Sangster JJ said:
Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence.
(Citations omitted).
[7] [2010] SASCFC 47.
[8] [2010] SASCFC 47 at [23] – [24].
In considering the personal circumstances of the appellant, including his youth and the prospects for his rehabilitation, there were a number of matters to be weighed by the sentencing judge. They were not only his age, but his good character and lack of previous convictions, his steady employment, his contrition and insight into his offending, the strong family support from his parents who are in a position to assist with his rehabilitation and his preparedness to participate in a sex offender intervention program at Owenia House, a program unavailable to him in prison.
Failure to suspend the sentence
It is convenient first to address the appeal against the refusal of the judge to suspend the sentence of imprisonment. In my view the judge considered all the factors relevant to the exercise of his discretion. The offending was serious. It was not isolated but involved a course of conduct. It involved two victims. The offending extended over a period of more than one year. The judge had regard to the appellant’s age, antecedents, other personal circumstances including the need for sexual offender treatment and his remorse. It was open to the judge to find that good reason to suspend the sentence did not exist. The exercise of the judge's discretion has not miscarried. It is not a question of whether, in these circumstances, this Court would have suspended the sentence. I would reject that ground of appeal.
Manifest excess?

In The Queen v Morse[9] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[10]
[9] (1979) 23 SASR 98.
[10] (1979) 23 SASR 98 at 99.
As I have observed, the maximum sentence prescribed by law for each count is 10 years imprisonment. Further, as I have also noted, this is serious offending. Offences of this kind are inherently serious. However, it is important to place the gravity of the offending in its context. None of the appellant's offending was committed in physical proximity to either of the victims. In the case of A the offending occurred over the internet and via Skype. At all times the victim was alone in his bedroom in the family home. At any time he could have switched off his computer. To make this point is not in any way to blame the victim for what occurred but to place in its proper context the nature of the appellant's offending in relation to counts 1 and 2. A was not in as vulnerable a position as a victim of offending who is in the immediate physical presence of a person committing an offence contrary to s 63B of the CLCA. It was easier for A to have escaped from the appellant and his offending conduct than a victim who finds he or she is in the offender's immediate physical presence. Of course, offending over the internet against children can be difficult to detect by that very reason. In imposing sentences for such offending, the criminal law must give paramount consideration to the need for general and personal deterrence in order to protect children. However, each case must still be considered in the light of its individual facts and the circumstances. Every offence that falls into the broad category of child sexual exploitation must be considered in its particular factual context.
This is particularly so in the case of count 3. This offending occurred via the use of messages on Facebook. There was no use of a camera via Skype as in the case of the offending against A. Again, the offending did not occur in the immediate physical presence of B. At the time B was 16 years and eight months of age. The Facebook messages posted by the appellant suggested sexual activity. No sexual activity occurred. B was left confused as to whether the messages were serious or some form of perverse joke. Once B made clear that he was not amenable to the appellant's suggestions the offending ceased.
In my view, even allowing for the fact that this offending occurred in circumstances where the appellant was in a position of authority and that it represented a continuation of the sort of predatory offending the appellant had committed against A, I consider that the imposition of a term of imprisonment with respect to count 3 was manifestly excessive. The judge considered that the offending against B was quite separate and distinct from the offending against A. He found there was no connection between the two to justify anything other than the imposition of cumulative rather than concurrent sentences. However, in my view the discrete offending against B, for the reasons explained, did not warrant the imposition of an immediate term of imprisonment. Of course, in considering the appeal against sentence, the focus must be on the total head sentence. Even if the judge had utilised s 18A of the Sentencing Act for the purposes of imposing a single sentence for all offending against both A and B, as was open to him, I consider that a sentence of 3 years is manifestly excessive, given the nature of the offending and the appellant’s personal circumstances. I am of this view notwithstanding the paramount consideration to be given to the need for general and personal deterrence.
I am reinforced in this conclusion by consideration of a comparative sentencing table jointly prepared by counsel for the appellant and the Director. Even allowing for the limited usefulness of such material, an analysis of the information contained therein demonstrates that for offences against s 63B(3) over the past five years most sentences imposed in respect of first offenders are imprisonment for less than two years. Most of these sentences were suspended. The most severe sentence of imprisonment that was not suspended was two years and five months for a 35-year-old male who also pleaded guilty to further charges of aggravated and non-aggravated dissemination of child pornography and aggravated and non-aggravated production of child pornography.
Further, I consider the non-parole period of 16 months to be manifestly excessive. I do so because that length of time in prison is more likely to impair rather than enhance the appellant's prospects of rehabilitation. This is a matter that the judge appears to have recognised implicitly but failed to bring to account in imposing the non-parole period. While the judge did weigh the appellant's youth and lack of criminal history in fixing the non-parole period, he failed to consider the negative consequences that length of imprisonment would have on what otherwise were the positive prospects for the appellant's rehabilitation. Moreover, I consider the non-parole period imposed is manifestly excessive given my conclusion that the head sentence is manifestly excessive. The public interest in the protection of children will be better served by the appellant spending a longer period on parole, under supervision, undergoing appropriate treatment and intervention, in the hope of preventing further offending of this kind.
As this is an outcome error rather than a process error, to adopt the categorisation of the Chief Justice in Kreutzer, it falls to the Court to fix the sentence it thinks ought to have been imposed below.
Resentencing
I would allow the appeal. I would fix a single term of imprisonment pursuant to s 18A in respect of all three counts. I would resentence using a commencement point of two years imprisonment. I would reduce this to 21 months and two weeks after allowing for the plea of guilty. I would impose a non-parole period of eight months. The sentence and the non-parole period will commence from 17 October 2014 when the appellant was taken into custody.