Supreme Court of South Australia
(Court of Appeal: Criminal)
WARNER v THE KING
[2022] SASCA 142
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice Doyle)
23 December 2022
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING GUIDELINES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - SENTENCING METHODS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Appeal against sentence.
The appellant appeals against the sentence imposed by a judge of the District Court on his convictions of five counts of maintaining an unlawful sexual relationship and one count of indecent assault contrary to sections 50(1) and 56(1) of the Criminal Law Consolidation Act 1935 (SA), respectively. The six victims of the appellant’s offending were under the age of 14 years when the offending against each of them commenced.
The judge imposed a notional total sentence of 48 years, two months and 14 days’ imprisonment. Applying the principle of totality and taking into account time spent in custody and on home detention bail, the judge imposed, pursuant to s 26 of the Sentencing Act 2017 (SA), a single sentence for all of the offences of 24 years’ imprisonment with a non-parole period of 19 years, two months and 13 days.
The appellant appeals on the following grounds:
1.The sentence was manifestly excessive.
2.The sentencing judge erred in treating the offending against MS as coming within the guidelines enunciated by Doyle CJ in R v D (1997) 69 SASR 413 as there was one allegation of unlawful sexual intercourse respectively.
3. The sentencing judge erred in treating the offending against KS as coming within the guidelines enunciated by Doyle CJ in R v D (1997) 69 SASR as there were no allegations of unlawful sexual intercourse.
Held per Kourakis CJ and Doyle JA (granting permission to appeal but dismissing the appeal):
1.The appeal is necessarily brought against the single sentence imposed on all counts. That sentence is not disproportionate.
2.A greater degree of concurrency resulting in a head sentence of less than 24 years’ imprisonment could not be allowed without compromising the objectives of sentencing.
Held per Livesey P (granting permission to appeal and allowing the appeal):
1.The sentence was manifestly excessive.
2.The sentence ought to be set aside and the appellant resentenced to a head sentence of 19 years (after allowing for time served in custody and on home detention bail) with a non-parole period of 15 years and 3 months.
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 56; Sentencing Act 2017 (SA) ss 26, 47(5)(d); Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA), referred to.
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CaseChat Overview and Summary
The central legal issues before the Court of Appeal were how to properly discharge the statutory requirement to indicate the individual sentences that would have been imposed for each offence, even when a single sentence is imposed for multiple offences, and how to ensure proportionality and achieve the objectives of sentencing, including deterrence and rehabilitation, in such circumstances. The Court also considered the appropriateness of imposing cumulative versus concurrent sentences for offences of a similar nature against different victims.
The Court reasoned that the requirement to indicate individual sentences is best met by imposing separate sentences for each offence, which may then be made concurrent to achieve overall proportionality. Alternatively, if a single sentence is imposed under section 26 of the relevant legislation, the court must still indicate the individual sentences that would have been imposed and explain the reasons for the overall reduction, often focusing on the risk of a "crushing" sentence. The Court found that the sentencing judge's starting points for some offences were lenient, particularly for the offending against ZH and MS, and that a sentence of 14 years for ZH would not have been disproportionate. For AH, a significant downward departure from the guideline was difficult to justify. The Court determined that cumulative sentences were appropriate for the more serious offences against ZH and MS, with sentences for other offences being largely concurrent to maintain proportionality. The Court ultimately concluded that while the head sentence imposed by the judge was excessive, a sentence significantly less than 24 years could not be justified without compromising sentencing objectives, given the appellant's persistent and predatory behaviour.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The requirement to indicate the individual sentences which would have been imposed is most fully discharged by imposing separate sentences for each offence in which case it will often be necessary to make some or all of the sentences at least partially concurrent in order to maintain proportionality overall. If that approach is adopted, the overall reduction can be explained by reference to the extent to which the sentence imposed on each offence contributes to the attainment of the sentencing objectives in respect of the other offences. If a single sentence is imposed pursuant to s 26 an indication must still be given of the individual sentences which would have been imposed and some explanation of the reason for the overall reduction must be given. If that approach is adopted, the focus is likely to be on why the accumulation of the individual sentences would result in a crushing sentence.Consideration The Judge’s starting point of 12 years for the offending against ZH was lenient. Having regard to ZH’s age when the offending commenced and the many years over which it continued, a sentence of 14 years would not have been disproportionate. For the offending against AH, which commenced when he was 13 years old, it is difficult to identify mitigating circumstances which warranted a downward departure of two years, or about 15 per cent, from the guideline. The sentence imposed for the single offence of indecent assault against TE, given the demands of personal and general deterrence, was within the appropriate range even though it was quickly brought to an end by TE telling Mr Warner to stop. The offending against MS was particularly serious given his young age and the range and persistence of the offending. Nothing less than the starting point of 12 years was warranted. The starting point selected for the offending against KS (DI 1) on the other hand may have been a little more severe than condign punishment. The offending against CW-M was committed frequently over a period of two years. Mr Warner embarked on the offending against CW-M in the same period in which he was offending against MS. He abused the trust reposed in him by CW‑M’s father, who was his friend, and took advantage of his family’s need for accommodation. Again nothing less than the starting point of 12 years is warranted. There are, as I observed earlier, sound reasons to order that sentences for offences of maintaining unlawful sexual relationships against different victims be served cumulatively. After reduction by the applicable percentages, for Mr Warner’s guilty pleas, to the starting points selected by the Judge, the resulting head sentence would be about 46 years. For a man of Mr Warner’s age that sentence would be disproportionately heavy even having regard to the strong personal deterrence required to kerb his relentlessly predatory behaviour. An appropriate structure for the sentences in this case would be the imposition of cumulative sentences of 12 years for the more serious offences against ZH and MS. To maintain proportionality the sentences for the offences against AH and KS should be largely, but not wholly, concurrent with the sentences imposed in respect of ZH and MS respectively. The total head sentence for those four offences, after reductions for the guilty pleas, would be about 22 years. Imposing sentences for the offences against CW-M and TE which are largely concurrent with the earlier sentences still results in a sentence well in excess of the 24 years imposed by the Judge. I am not persuaded that a greater degree of concurrency resulting in a sentence less than 24 years could be allowed without compromising the objectives of sentencing. Mr Warner showed no restraint in his offending over many years. The prospects that he would show greater restraint are poor if released significantly sooner.