Turnbull (a pseudonym) v The King - [2023] SASCA 121

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
TURNBULL (A PSEUDONYM) v THE KING
[2023] SASCA 121
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Doyle)
15 November 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
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.
Following a trial by judge alone, the applicant was convicted of one count of maintaining an unlawful sexual relationship with his stepdaughter, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The applicant’s offending involved various acts of indecent assault and unlawful sexual intercourse, including touching her on the genital area, inserting a finger into her vagina, touching her breasts and exposing his penis to her. The trial judge found, and sentenced the appellant on the basis that, the offending took place over a period of approximately 12 months from around the year 2000. At the relevant time, the victim was between nine and 10 years of age.
The sentencing judge imposed a head sentence of 12 years imprisonment and fixed a non-parole period of six years and three months.
The applicant seeks permission to appeal on two grounds summarised as follows:
1.The sentencing judge erred in failing to apply the correct sentencing process of instinctive synthesis.

2. The sentence was manifestly excessive.
Held (per the Court), refusing permission to appeal:
1. Neither proposed ground is reasonably arguable.
Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Hili v The Queen (2010) 242 CLR 520; Markarian v The Queen (2005) 228 CLR 357; Ndreka v The Queen [2021] SASCA 11; R v D (1997) 69 SASR 413; R v Grose (2014) 119 SASR 92; R v Morse (1979) 23 SASR 98; White (a pseudonym) v The Queen [2022] SASCA 78, considered.

TURNBULL (A PSEUDONYM) v THE KING
[2023] SASCA 121
Court of Appeal – Criminal: Livesey P and Doyle JA

THE COURT (ex tempore): Following a trial by judge alone, the applicant was convicted of one count of maintaining an unlawful sexual relationship with his stepdaughter, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is life imprisonment. The applicant was acquitted of a further count of the same offence in relation to his biological daughter.
The sentencing judge imposed a head sentence of 12 years imprisonment and fixed a non-parole period of six years and four months.
The applicant seeks permission to appeal on two grounds. The first is that the sentencing judge erred in failing to apply the correct sentencing process of instinctive synthesis as required by Markarian v The Queen.[1] The second is that the sentence imposed is manifestly excessive.
[1] Markarian v The Queen (2005) 228 CLR 357.
Circumstances of the offending
The offending occurred over an approximately 12 month period, during 2001 and 2002, while the applicant was 33 to 34 years of age and the victim, EG, was 9 to 10 years of age.
EG had come to know the applicant when her family moved in next door to him. At the time, EG was living with her mother, LG, and three older brothers. The applicant and LG commenced a relationship and began living together at various addresses over a number of years. They had a daughter, CP, who was four years younger than EG.
The offending involved multiple occasions of unlawful sexual intercourse and indecent assaults. The sexual acts involved the applicant touching EG on the vagina both over and underneath her underwear, digitally penetrating her vagina, and an occasion of touching her on the breasts. The offending took place in the setting of the family home. It commenced while they were living at an address in Davoren Park. EG described the touching during this period as “routine” and happening “very frequently … more than once a week”. It continued when they moved to an address in Elizabeth North, but the touching became less frequent and less than once per week.
When EG was 10 or 11 years of age, she told the applicant she wanted him to stop because he was getting very possessive and accusing her of having sex with boys at school. The applicant said “he would try but it was really hard to stop”. During an occasion of offending at the Elizabeth North address, when the applicant touched EG’s breasts and vagina, the applicant said he was “trying so hard to stop but he just couldn’t help himself.”
EG’s evidence was that she did not tell anyone about the offending at the time because the applicant “told me that he couldn’t help himself and that if I did tell anyone we would get in a lot of trouble and it would break the family up and mum couldn’t pay the bills without his help.”
The applicant moved out of the family home in around May 2002, following an altercation that occurred when EG’s mother found a diary in EG’s bedroom that referred to the applicant touching her inappropriately.
In her reasons for verdict, the judge noted some uncertainties in the evidence as to the timing of the offending. However, these did not prevent the offence being made out beyond reasonable doubt. In describing the circumstances of the offending in her sentencing remarks, the judge said:
I do not intend to repeat my findings in any detail, however in summary, I found that you had committed acts of indecent assault and unlawful sexual intercourse on multiple occasions against your stepdaughter which involved you touching her on the genital area, inserting a finger into her vagina, and touching her breasts. I accept that given the uncertainties in relation to time frames of when the offending occurred, it is appropriate to sentence you on the basis that your offending took place over a period of approximately 12 months from around the year 2000. At the relevant time, the victim would have been around the age of nine to 10 years of age.
The judge later added:
… your offending was persistent and very serious. It was opportunistic and involved a serious breach of trust that had been placed in you. You were the victim’s stepfather and she thought of you as her dad. She described the offending against her as “routine” and that you made threats that if she told anyone, it would break up the family, and that her mother needed your help financially. The impact on her life and the lives of her family, as you have heard, has been significant and ongoing.
The judge received victim impact statements from EG, her sister and her mother. The judge summarised the effect of these statements in her sentencing remarks. They detailed the significant and ongoing distress and trauma experienced by EG and her family.
Personal circumstances of the applicant
At the time of sentence the applicant was 56 years of age.
The applicant was one of 11 children. The applicant said he had a loving and supportive relationship with his parents, although described being removed from their care for a period on account of their house being too small for them all. However, he was later returned to their care during his late primary school years. He struggled with learning difficulties while at school. After leaving school he undertook factory work until he sustained a workplace injury and commenced receiving a disability support pension.
The applicant had suffered from depression, anxiety and diabetes. Before being taken into custody, he was living with a brother who has epilepsy. He had previously been homeless. He had no real friends, with his only social contact being with two of his siblings.
The judge was provided with a report prepared by a psychologist, Mr Luke Broomhall, which had been prepared for the purpose of assessing the applicant’s fitness to plead. Mr Broomhall found that he presented with literacy and memory problems, but did not meet the diagnostic criteria for an intellectual disability.
The applicant had a relevant offending history. In April 1987, he was convicted of incest and indecent assault against his 13 year old sister, and indecent assaults against two other sisters aged 16 and 21.
Sentencing remarks
The judge summarised the circumstances of the offending and the applicant’s personal circumstances in terms similar to the above.
In imposing sentence the judge said:
Your offending calls for a strong sentencing response, and as your offending included penetrative acts, in my view the sentencing standard in R v D applies here. Clearly, general deterrence has a significant role to play in sentencing for this offending. Given your history of offending, personal deterrence must also have some role in the sentence, although, I accept that the offending was a significant time ago.
I fix a sentence of 12 years imprisonment. With respect to the appropriate non-parole period, as I have said, this offending was committed approximately 20 years ago and there has been no offending since that time. I accept that there has been an increasing level of dysfunctionality in your life over that time. I fix a non-parole period of six years and four months.
Ground 1: failure to apply the correct sentencing process
The applicant contends that the sentencing judge erred in failing to apply the correct sentencing process of instinctive synthesis required by Markarian v The Queen. In support of this contention, the applicant argued that the judge merely applied the standard of 12 years imprisonment for sexual acts including penetrative sex from R v D[2] without considering the various objective and subjective considerations relevant to the sentence to be imposed. In particular, he argued that the judge failed to consider that the period of the offending was at most about 12 months; that the frequency of the offending decreased towards the end of that period; that whilst the sexual acts included penetrative sex, it involved digital penetration; there were no accompanying threats of violence or actual violence; and the offending occurred a considerable time ago, without any further contact between the applicant and the victim. He also argued that the judge failed to consider the applicant’s personal circumstances outlined in the report of Mr Broomhall and the submissions of counsel.
[2] R v D (1997) 69 SASR 413.
There is no merit in this contention. The sentencing judge’s remarks, while (appropriately) succinct, involved an entirely orthodox application of the instinctive synthesis approach to sentencing.[3] Her Honour began by summarising the circumstances of the offending, including by reference to the detail of her findings in her reasons for verdict. She summarised the effect of the offending on the victim and her family, and the applicant’s personal circumstances. The latter included reference to his personal history as well as some of the health and other difficulties he has faced. It included reference to the report and opinions of Mr Broomhall. The judge then identified various other relevant sentencing considerations (including the standard in R v D, the need for personal and general deterrence and the dated nature of the offending), before imposing a head sentence. In fixing a non-parole period, the judge had further regard to delay, lack of re-offending in the period that had passed since the offending occurred and the applicant’s dysfunctional lifestyle.
[3] Markarian v The Queen (2005) 228 CLR 357 at [51] (McHugh J).
This approach was entirely consistent with the instinctive synthesis approach to sentencing. No more was required of the sentencing judge by way of explanation for the sentence imposed. It was not necessary for the sentencing judge to engage in any more detailed consideration or explanation of the relevance or significance of the various circumstances that had been identified. Indeed, it is inherent in the instinctive synthesis approach that this will often not be possible or appropriate. Contrary to the oral submissions made this morning, we do not think that the judge’s sentencing remarks can be understood as taking an unduly mechanical or two-staged approach to the so-called standard in R v D. Rather, the natural understanding of her Honour’s remarks is that her Honour had regard to the guidance in R v D but only arrived at an ultimate head sentence of 12 years after having had regard to all of the circumstances of the offending and offender, as earlier summarised in the sentencing judge’s sentencing remarks. There was no need for her Honour to repeat or summarise those matters when pronouncing sentence at the end of her remarks.
Ground 1 is not reasonably arguable.
Ground 2: manifest excess
The principles governing a complaint of manifest excess are well established and need not be repeated. It is sufficient to observe that it requires that the defendant establish that the sentencing judge imposed a sentence that was unreasonable or plainly unjust; a sentence that was outside the permissible range of sentences for the offender and offence.
Whilst accepting that his offending was serious, the applicant identified various features of the offending which he contended required a significantly lower sentence. These features overlapped with those mentioned in connection with Ground 1 and focussed upon the fact that the offending: was for no more than 12 months and with a decreasing frequency towards the end of this period; consisted of indecent assaults with occasions of digital penetration; was not accompanied by any violence or threats of violence; and was committed a considerable time ago. The applicant also contended that his personal circumstances, combined with the passage of time, meant that personal deterrence – while still required, particularly in light of his previous offending – did not play such an important role as would otherwise be the case.
The starting point in considering this ground of appeal is that the Court in R v D established a sentencing standard for the very type of offending committed by the applicant; namely, a prolonged course of conduct involving penetrative sexual offending against a child by an adult in a position of trust and authority.[4] It was held that offending of this type, against a child under 12 years of age, should attract a sentence of about 12 years imprisonment; but the starting point may be higher or lower, depending upon the circumstances of the case.
[4] R v D (1997) 69 SASR 413 at 423-424 (Doyle CJ).
An examination of the circumstances of the offending and offender in this case do not provide a proper basis for contending that the judge was required to impose a head sentence of less than 12 years imprisonment. Nor do they provide a basis for impugning the non-parole period of six years and four months.
As to the period and frequency of the offending, it is noteworthy that the offending in R v D occurred over only a couple of months, albeit on an almost daily basis. But as subsequent authorities have made plain, the standard is not to be applied by reference to a close analysis or comparison of the period and frequency of the offending. It is sufficient to attract the standard that the offending involved serious sexual violation of a victim that is repeated persistently over a period of some weeks or more.[5] The offending in the present case certainly met that description. On the findings of the judge, the sexual acts occurred over a period of approximately 12 months. Whilst it is relevant that the frequency of the acts declined towards the end of this period, this is of little significance given that they occurred “very frequently … more than once a week” for a number of months.
[5] R v Whittemore [2012] SASCFC 88 at [16] (Kourakis CJ, Nyland and Anderson JJ agreeing).
The fact that the penetrative acts involved digital-vaginal penetration, rather than other forms of penetrative acts, whilst relevant in a general way, is of limited significance. The authorities rightly caution against an approach that focuses too closely upon the nature of the penetrative conduct, lest such differences take on a disproportionate significance in the sentencing process.[6]
[6] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [55]; Musgrave v Western Australia (2021) 289 A Crim R 17 at [3]-[8] (Quinlan CJ).
There is no requirement that sexual offending be accompanied by threats of violence or actual violence to attract the standard in R v D. Nor can the absence of such threats or violence be considered mitigatory in nature. To say that there was an absence of an aggravating feature seen in some other cases adds little. In any event, in the present matter, it is relevant that the applicant coerced EG’s silence under threat of her getting into trouble, fracturing the family unit and leaving her mother without financial support.
The fact that the applicant fell to be sentenced after a lengthy delay was of limited significance in the present case. It is notorious that victims of child sexual abuse are often reluctant to come forward for many years, and that the offender often resumes a law-abiding life after the offending. To place significant weight on these circumstances would be to allow offenders to escape due punishment.[7] As the respondent contended, this was not an “unusual and difficult” case like R v Dyett[8] in which the sentencing court was met with evidence of actual rehabilitation that justified a mitigation in sentence.
[7] R v Stain [2021] SASCA 70 at [46]-[47] (Kelly P, Bleby JA and Blue AJA); R v V, AJ [2012] SASCFC 10 at [3] (Doyle CJ); R v Quinn (2012) 114 SASR 354 at [36] (Gray J, Anderson and Sulan JJ agreeing); R v R, AW (2012) 113 SASR 179 at [87] (Peek J, Nyland J agreeing).
[8] R v Dyett [2023] SASCA 41 at [50]-[53], [56] (Livesey P, Bleby and David JJA).
As to the applicant’s personal circumstances, there was nothing significant or peculiar that warranted, let alone required, a departure from the sentencing standard in R v D.
In summary, as the respondent contended, the following factors demonstrate that both the head sentence and non-parole period were within the appropriate range:
·the seriousness of the offending, as reflected in the maximum penalty of life imprisonment and the sentencing standard in R v D;
·the nature of the sexual acts, which included penetrative acts;
·the period and frequency of the sexual acts, which occurred over a 12 month period and, initially at least, on a very frequent and at least weekly basis;
·the young age of the victim, who was 9 to 10 years of age at the time of the offending;
·the gross breach of trust occasioned by the offending, given the applicant’s role as the victim’s stepfather;
·the coercion used to obtain the victim’s silence and permit the offending to continue;
·the fact the applicant did not cease the offending of his own accord;
·the impact of the offending upon the victim and her family;
·the applicant’s history of sexual offending;
·the limited significance of the passage of time since the offending occurred;
·the applicant’s lack of demonstrated remorse, insight or contrition; and
·the absence of any demonstrated rehabilitation.

In the circumstances, there was little if anything to mitigate the applicant’s sentence, or to otherwise provide the sentencing judge with any confidence as to his prospects of rehabilitation.
The complaint of manifest excess is not reasonably arguable.
Conclusion
The application for permission to appeal against sentence must be dismissed.