Warner v The King

[2022] SASCA 142

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.

R v D (1997) 69 SASR 413, discussed.

Attorney-General (SA) v Tichy (1982) 30 SASR 84; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Henry v R (2022) 403 ALR 369; Lane v The Queen [2020] SASCFC 82; Markarian v The Queen (2005) 228 CLR 357R v Cramp (2010) 106 SASR 304; Mill v The Queen (1988) 166 CLR 59; Muldrock v The Queen (2011) 244 CLR 120; R v AJW (2001) 80 SASR 246; R v Bonython-Wright (2013) 117 SASR 410; R v B,R [2019] SASCFC 86; R v Cave [2012] SASCFC 42; R v Copeland (No 2) (2010) 108 SASR 398; R v E, AD (2005) 93 SASR 20; R v Gibbs [2017] SASCFC 140; R v Hunter (1984) 36 SASR 101; R v Knight (1981) 26 SASR 573; R v MJJ; R v CJN (2013) 117 SASR 81; R v McIntyre (2020) 138 SASR 17; R v Nylander (2003) 228 LSJS 24; R v Quinn (2012) 114 SASR 354; R v RGC [2020] SASCFC 102; R v Rossi (1988) 142 LSJS 451; R v Smoker (2016) 126 SASR 201; R v T, SA (2014) 120 SASR 145; R v W, PL [2017] SASCFC 119; R v Whittemore [2012] SASCFC 88; SCN v The State of Western Australia [2017] WASCA 138; White (a pseudonym) v The Queen [2022] SASCA 78; Wong v The Queen (2001) 207 CLR 584, considered.

WARNER v THE KING
[2022] SASCA 142

Court of Appeal – Criminal:    Kourakis CJ, Livesey P and Doyle JA

1. KOURAKIS CJ: The appellant, Craig Warner, appeals against the sentence imposed on him in the District Court. The sentence was imposed on his convictions on four counts of maintaining an unlawful sexual relationship, to which he had pleaded guilty on a Magistrates Court Information (MI) which was committed to the District Court for sentence, one count of maintaining an unlawful sexual relationship, and one count of indecent assault on an Information filed in the District Court (DI) to which he pleaded guilty. Pursuant to s 26 of the Sentencing Act 2017 (SA) (the Sentencing Act) the Judge imposed a single sentence for all of the offences of 24 years and fixed a non-parole period of 19 years, two months, and 13 days.

2. Mr Warner appeals on the ground that the sentence was manifestly excessive.  That ground is particularised by reference to some circumstances of the offending which are said to warrant lesser sentences than the sentencing guideline given by this Court in R v D.[1]However, the grounds of appeal do not complain of an error in respect of any matters taken into account or of error on any matter of principle. 

   [1]     R v D (1997) 69 SASR 413.

3. I would dismiss the appeal. I accept that it is arguable that the starting point selected by the Judge for two of the offences was excessive, but the appeal, necessarily, is brought against the single sentence imposed on all counts pursuant to s 26. That sentence is not manifestly excessive. It is unnecessary to consider whether any of the notional sentences would have been manifestly excessive if imposed as a discrete sentence.

4. I elaborate on my reasons below.

   The offending

5. The victim of count MI 1 was ZH, who was born on 19 February 1993.  ZH deposed in his witness statement that the offending commenced when he was still in primary school and continued until he was 16 years old.  The period of offending charged was limited to between January 2006 and February 2010.  ZH and his family lived across the road from the suburban Adelaide home in which Mr Warner was then living with his parents.  Mr Warner was aged between 26 and 30 years in the period charged.  ZH and his brother often spent time at Mr Warner’s home where they played on computers and gaming consoles.  The offending against ZH included indecent touching of ZH’s genitals and performing fellatio on him. 

6. The victim of count MI 2 was ZH’s brother, AH, who was born on 1 September 1995.  The charged offending commenced in 2008 when AH was 13 years old and included the indecent touching of AH’s genitals both over and beneath his clothes.  The offending occurred over a period of about four years ending in 2012.  The offending occurred about twice a week until AH’s family moved home.  There was then less frequent contact between Mr Warner and AH when Mr Warner was living at his sister’s house.  Mr Warner performed fellatio on AH on about five occasions at that place. 

7. The victim of count MI 5 was MS who was born on 25 November 2002.  MS deposed in his witness statement that he was eight years old when the offending began.  The offending charged occurred between 2011 and 2018 after Mr Warner had returned to live in his hometown in regional South Australia.  MS lived with his family next door.  He too visited Mr Warner’s home to watch videos and play video games and offences were committed on most occasions on which he visited.  Mr Warner indecently touched MS’s genitals over and beneath his clothing and performed fellatio on him.  Mr Warner also caused MS to touch his genitals.  Other children were sometimes present.  The offending ceased for a while when MS told Mr Warner that he should stop.  However, in about 2016 when AH was 13 years old, Mr Warner again indecently touched his genitals but did not persist when AH protested.

8. The victim of MI 7 is CW-M who was born on 29 November 2006.  The charged offending occurred between November 2016 and December 2018.  CW‑M, his brother, sister and father, who was Mr Warner’s friend, were staying with Mr Warner in the same regional town.  CW-M was 10 years old when the offending began.  The offending occurred in Mr Warner’s bedroom and the loungeroom whilst they were playing video games.  Mr Warner touched CW-M’s genitals over and beneath his clothing, masturbated him and performed fellatio on him.  Mr Warner would stop when CW-M asked him to.  The offending continued until CW-M turned 12 years old in 2018.

9. The victim of count DI 1 was KS who was born on 14 September 1999 and is the brother of MS.  The offending charged was alleged to have been committed between January 2011 and 14 September 2016 by Mr Warner touching KS’s genitals over his clothing and attempting to put his hand beneath his clothing.  Mr Warner often asked KS to hug him and often kissed him on the lips.  He also showed KS pornography.

10. The victim of DI 3 was TE who was born on 22 June 2002.  His mother and Mr Warner were close friends and she would visit his home in the same regional town often.  The offending occurred on a single occasion in about 2015 when TE was sitting with Mr Warner on his lounge.  They were covered by a blanket.  Whilst Mr Warner was playing pornographic videos, he indecently touched TE’s genitals under his shorts.  Mr Warner stopped when he was asked to but made a second attempt a little later.  He again stopped when he was told to go no further.  There was no other sexual contact between them.

11. The victims of Mr Warner’s offending, other than KS and CW-M, gave victim impact statements.  CW-M’s father, who had been Mr Warner’s friend, provided a victim impact statement.   He blamed his estrangement from his son on the offending.  ZH suffered a mental illness as a result of the offending.  He has attempted to take his life which he attributes to his ruminations about the offending.  AH is burdened by a sense of guilt.  He suffers crippling anxiety, depression and has difficulty controlling his anger.  He has lost social confidence and finds it difficult to trust others.  MS suffers from anxiety and depression.  TE told the sentencing Judge that he suffered as a result of the offending, but he expressed a wish that his suffering not be made public.

    Personal circumstances

12. Mr Warner was born in regional South Australia on 3 January 1980.  He is now 42 years of age.  He had no criminal antecedents before the offending.  He completed year 12.  He studied accounting and commerce at the University of South Australia.  He is afflicted by a disease which required regular hospital admissions and caused him to abandon his studies.  He eventually found long-term work as an IT consultant. 

13. Mr Warner was bullied at school and ostracised by his peers for being effeminate and gay.  He suffers low self-esteem.  A psychologist whose report was received by the Judge diagnosed Mr Warner as suffering from post-traumatic stress disorder.  The report records that Mr Warner was sexually abused by a boy aged 12 years old when he was six years old.  The abuse continued for seven years.  At 10 years of age, he was sexually abused by another boy.  That abuse developed into a sexual relationship which lasted 26 years.  Mr Warner also had sexual relationships with some other boys who were several years older than him from age 10.  Dr White expressed the opinion that Mr Warner’s own sexual abuse blinded him to the seriousness of, and harm caused by, his offending.

    The sentencing remarks

14. The Judge sentenced Mr Warner as follows:

    I will deal firstly with the offences to which you pleaded guilty in the Magistrates Court.  For count 1, in relation to maintaining an unlawful sexual relationship with ZH who was under the age of 12 at the time your offending commenced, I impose a sentence of 12 years imprisonment.

    With respect to count 2, maintaining an unlawful sexual relationship with AH, who was about 13 years old at the time of your offending against him commenced, I impose a sentence of 10 years imprisonment.

    With respect to count 5, maintaining an unlawful relationship with MS who was under the age of 12 when your offending commenced, I impose a sentence of 12 years imprisonment.

    With respect to count 7, maintaining an unlawful sexual relationship with CWM, I impose a sentence of 12 years imprisonment.

    Whilst some of these offences overlapped in a temporal sense, they were against different victims and represented distinct courses of conduct or, to put it another way, separate incursions into criminal offending.  It is appropriate that those sentences should be cumulative upon each other.

    That results in a sentence of 46 years.  I reduce that by 20% on account of your early pleas of guilty because in so pleading you have shown a willingness to facilitate the interests of justice and you have saved the victims from the ordeal of having to give evidence against you.  A reduction of that amount results in a sentence of 36 years nine months and 19 days.

    With respect to the offences to which you have pleaded guilty in this court, as to the count of maintaining an unlawful sexual relationship with KS, I impose a sentence of 10 years.

    As to count 3, the indecent assault committed against TE, I impose a sentence of two years.  I make those sentences cumulative upon each other which comes to a total of 12 years for those offences.

    I reduce that by 5% on account of your pleas of guilty.  That comes to a sentence of 11 years, four months and 25 days.  I make that sentence cumulative upon the sentence I have imposed for the counts to which you pleaded guilty in the Magistrates Court, which comes to a total sentence of 48 years, two months and 14 days.

    Such a sentence would, of course, be crushing upon you.  Standing back, looking at your entire course of conduct, all matters personal to you and applying the principle of totality, I reduce that to a sentence of 25 years.  I take into account the 15 days that you spent in custody in relation to this offending as well as the two years, five months and 17 days that you spent on home detention bail.  I will give you credit of one year for this time in custody and on home detention bail.

    That leaves a total head sentence of 24 years imprisonment. By virtue of s.53 of the Sentencing Act you are taken to be a serious repeat offender. Understandably, no evidence has been proffered on oath or any submissions made by counsel to the effect that I should not declare you a serious repeat offender.

    As a result I am required by s.54 of the Sentencing Act to impose a non-parole period, representing four-fifths of the head sentence.  I set a non-parole period of 19 years, two months and 13 days.  Both the head sentence and the non-parole period are backdated to commence on 20 September 2021, the day on which your bail was revoked.

    The sentencing guideline

15. In R v D, Doyle CJ observed that the recent experience of the courts was that the sexual abuse of children by persons in a position of trust was quite widespread.  He held that for that reason the penalties for offences of that kind should increase and that the sentences imposed for offending against children who were under the age of 12 (now 14[2]) should reflect the higher maximum of life imprisonment.  Doyle CJ continued:[3]

    Of course, the court must also consider the circumstances of the offender. As I have already said, cases such as this are truly tragic, because the offender is often a person of otherwise good character. The effects of imprisonment upon such a person are likely to be most adverse, but the need remains for the court to do what it can to protect children against such persons.

    It is not necessary for the court to give a warning before increasing the range of penalties for a particular type of offending: Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108 at 113-114, per King CJ; R v Lewfatt (1993) 3 NTLR 41 at 43‑44, per Angel J and (at 45-46) per Priestley J. Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred.

    In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.

    When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment. Under the approach that I propose, the sentence of six years imposed upon this appellant would have been an appropriate sentence, and the sentences imposed in the cases to which I have referred would all be somewhat higher. There would be some differentiation as between those cases, because some of them involved children under 12 years of age, and some of them did not.

    [2]     Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA).

    [3]     R v D (1997) 69 SASR 413.

16. In R v D, Bleby J described the inherent culpability of repeated sexual offending against children in this way:[4] 

    This type of offence is particularly insidious, being generally committed by persons in a position of powerful influence over the victim and persons in whom the victim can properly expect, and usually does have, complete trust. When that influence is abused and that trust is betrayed for selfish gratification, then courts must reflect what I believe to be the community's revulsion of that conduct.

    [4]R v D (1997) 69 SASR 413, 430.

17. Bleby J emphasised that deterrence was a principal factor governing sentencing for sexual offences against children:[5]

    One of the principal factors governing the level of sentences for this type of offence must be deterrence. Severe penalties will not eliminate the practice, but, when coupled with adequate public awareness of the consequences of offending, they should have a significant effect. There is probably little to be gained by a statistical examination of the number of convictions for this type of offence. It would not surprise me if that showed a steady increase over recent years. However, that would not necessarily indicate an increase in prevalence of the conduct. It might reflect increased rates of detection. But even if that were so, that may well be because of greater community awareness of and openness in discussing such matters. With that openness has come a greater willingness to report allegations to persons in authority.

    However, with that community awareness has grown an enhanced awareness of the devastating and lifelong effects that sexual abuse can have on children. This case is a chilling example of that. The social background of many offenders (not just sexual offenders) includes sexual abuse of them as children. The need to break that cycle is obvious.

    [5]     R v D (1997) 69 SASR 413, 430.

1. Bleby J explained that the higher standard was also the product of an increased community and judicial awareness of the long-term effects of child sexual abuse:[6]

   Sentencing cannot be governed exclusively by the effect of the offence on the victim. It is but one of the many factors that must be taken into account under s 10 of the Criminal Law (Sentencing) Act 1988 (SA). For that purpose, s 7 of the Act has, since 1988, required provision to the court, in most cases, of a victim impact statement. However, while the consequences of an individual case cannot dictate the sentence to the exclusion of other relevant factors, the general level of sentences can be, and I am sure is, governed by an awareness by the courts of the social evils generally associated with the particular type of offending. In the case of persistent sexual offences against children, the general levels of penalty have been set, I apprehend, according to the offensiveness to right thinking people of the acts concerned, and at a time when the long-term consequences to the victims were less understood and of even less significance in the sentencing process.

   In my opinion, that justifies an upward review of the penalties generally applicable to such offences, particularly in relation to children under 12 years of age. This would, of necessity, have a flow-on effect to sentences in respect of offences concerning children over 12. I would therefore wish to join in the warning suggested by the Chief Justice that heavier penalties should be imposed for offences of this nature in respect of future convictions or pleas of guilty. Without that warning, however, it might be unfair on the present appellant to adopt that approach, and I would therefore stand by the proposed reduction in this case. For future cases I would endorse the approach suggested by the Chief Justice.

   [6]     R v D (1997) 69 SASR 413, 430-431.

2. It is important to properly understand the legal significance of the adoption of a sentencing guideline by an intermediate Court of Appeal.  Doyle CJ spoke of multiple sexual offences against children under 12 years of age attracting ‘a head sentence of 12 years’ on conviction following a plea of not guilty but stressed that he was not laying down a precise figure and that in the circumstances of a particular case the starting point might be higher or lower.  Bleby J spoke of the penalty being ‘generally applicable’ to such offences.  A sentencing guideline adopted by a court therefore differs markedly from a legislative mandate.  Nor is a guideline a direction to sentencing judges to impose 12 years in all such cases unless there is a good reason to impose a different penalty.  A guideline is an observation on the range in which sentences for offences of a particular kind will tend to coalesce if the competing sentencing objectives are properly balanced.

3. The importance of the guide given in R v D is that it indicates the range in which sentences for repeated sexual offending against the same victim could be expected to fall following the Court’s review of the relative weight which should be accorded to deterrence and the protection of children.  It follows too that the guideline accommodates a range of factors personal to the offender which are generally encountered in cases of that kind.  Nonetheless, as Doyle CJ observed, the guidelines leave the precise balancing of all the circumstances of a particular offence and offender to the sentencing Judge.  However, the sentences imposed will tend to oscillate within a small range around the indicative sentence unless there is a circumstance peculiar to the case which outweighs significantly the generality of circumstances which characterise cases of this kind.

4. More recently the Court of Appeal applied the guideline sanctioned in R v D in Edmonds (a pseudonym) v The Queen.[7]  In that case, the victims of Edmonds’ offending were his three step‑granddaughters, A, B and C, who were the biological grandchildren of his wife. 

   [7]     Edmonds (a pseudonym) v The Queen [2022] SASCA 11 (Livesey P, Doyle and David JJA).

5. A was abused from the age of 10 to 15 years.  The abuse progressed from indecent touching to penetration.  B was abused almost weekly over two and a half years from when she was 11 years old to when she was 14 years old. The offending against B also progressed from indecent touching to penetration.  C was abused from when she 10 years old and until she was 12 years old.  The offending against C involved indecent touching without penetration. 

6. Edmonds pleaded guilty and was sentenced to 18 years’ imprisonment for the offences, after receiving the benefit of a 25 per cent reduction in the sentence that would otherwise have been imposed. 

7. The Court of Appeal granted permission to appeal and allowed the appeal setting aside the sentence and imposing instead a single sentence of 15 years’ imprisonment with a non-parole period of 12 years.  The Court of Appeal accepted the starting points for the offences, viewed individually, were appropriate but then considered the Judge’s approach to fixing the overall sentence of Edmonds’ multiple offending:[8]

   [60]Here, the sentencing Judge invoked the principle of totality in reducing his notional cumulative starting point of 22 years and six months imprisonment to an ultimate head sentence of 18 years imprisonment.  It is apparent from his Honour’s sentencing remarks that his rationale for invoking totality was his concern that, by reason of the applicant’s advanced age and health conditions, a sentence of 22 years and six months imprisonment would be “crushing”.  This was a legitimate and appropriate concern.

   [61]When invoking totality to reduce a sentence that might otherwise have been imposed on the ground that it would be crushing, it is important to appreciate that this does not ordinarily involve any exception to the overarching obligation of the sentencing court to impose a sentence that is proportionate having regard to the overall criminality of the defendant’s offending and to the defendant’s personal circumstances.  In reflecting the desirability, having regard to the rehabilitative objective of a sentence, of ensuring that an offender retains the hope and incentive of achieving rehabilitation during their lifetime, the reduction of a crushing sentence on totality grounds is ordinarily a mere manifestation of the concern to ensure proportionality in the sentence ultimately imposed.[9]

   [8]     Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [60]-[61].

   [9]     R v Smoker (2016) 126 SASR 201 at [75]-[85] (Lovell and Hinton JJ), explaining several earlier authorities, including R v E, AD (2005) 93 SASR 20 at [37] (Doyle CJ, Debelle and Besanko JJ agreeing); R v Scott [2017] SASCFC 96 at [51] (Lovell J, Stanley and Parker JJ agreeing).

8. The point made in the last of the paragraphs just cited, that a reduction in the arithmetic accumulation of otherwise appropriate individual sentences is anchored in proportionality to the overall offending, is, with respect, both plainly correct and fundamentally important.

9. The Court continued:

   [62]In any event, the potential for the sentence imposed upon the applicant to be crushing, given his age and health, was not the only source of concern in ensuring proportionality in the present case.  As the sentencing Judge observed in his sentencing remarks, there was also “some overlap of the time, place and the nature” in the applicant’s offending.  In our view, this was a significant feature of the applicant’s offending that needed to be reflected in the sentence ultimately imposed. 

   [63]As counsel for the respondent emphasised, it is important to be precise when speaking of an “overlap” between multiple offences.  Sometimes there may be an overlap in the physical conduct constituting two offences.  That was obviously not the situation in the present case.  Here there was an overlap in timing, but only in the sense that there was an overlap in the periods of abuse vis-à-vis the three victims.  It is not as though he was abusing them at the same time, or even on the same days or occasions.  For these reasons, in combination with the fact that the applicant’s offences involved three victims, it is unhelpful to describe the applicant’s offending as involving one course of conduct.  It is more apt to describe it as involving at least three courses of conduct.

   [64]However, there remained an overlap in the matters relevant to the sentencing exercise in respect of each of the three offences that needed to be addressed in order to ensure that the ultimate sentence was proportionate.  In addition to the overlap in the periods of the offending, each of the offences was of a similar nature, involving the applicant’s abuse of his position as step-grandfather of the victim, through repeated sexual abuse in his own home (or that of his grandchildren), for his own sexual gratification.  As such, there was a real prospect that the imposition of a significant sentence of imprisonment in respect of one or more of these offences would assist in achieving some of the sentencing objectives intended to be achieved by the sentences for the others.

   (Footnotes in original)

10. In light of the submissions made by the Director of Public Prosecutions (SA) on this appeal, it is necessary to make two observations about those passages.  First, in paragraph [63] the Court of Appeal rejected the proposition that the offending against three victims could be characterised as one course of conduct notwithstanding the temporal and locational overlap between the offences.  Secondly, the significant similarities between the offences mentioned in paragraph [64] was no more than an observation on why in the circumstances of that case ‘the imposition of a significant sentence in respect of one or more … offences would assist in achieving some of the sentencing objectives intended to be achieved by the sentences for the others’.  The Court of Appeal then went on to outline the different ways in which a proportionate sentence might be structured:

    [65]Counsel for the respondent submitted that, to the extent that the interconnection between the offences in the present case gave rise to any risk of a disproportionate sentence, that fell to be addressed through an application of the principle of totality, which is what the sentencing Judge did. 

    [66]There are two difficulties with this submission.  The first difficulty is that, insofar as the submission assumed that it would have been inappropriate to allow for some level of partial concurrency in the present case, we do not agree.

    [67]It may be accepted that the paradigm case for the application of the principle of concurrency is a case involving a single incursion into criminal conduct, or a single course of conduct.[10]  However, as Kourakis J (as he then was) explained in R v Copeland (No 2),[11] even when the connection between two offences is insufficient to characterise them as involving a single course of conduct, there may nevertheless be sufficient reason to make the sentences for those offences at least partially concurrent.  Sufficient reason may exist where the imposition of a penalty for one of the offences affects what is necessary to achieve the deterrent, punitive or rehabilitative objectives of the sentence for other offending.

    [68]This broader view of the scope of operation for the principle of concurrency has been adopted in subsequent decisions of this Court.[12]  Indeed, in R v W, PL it was recognised that this broader approach to concurrency may extend to sexual offending against multiple victims.[13]  It will remain important in such cases to ensure that the sentence ultimately imposed adequately reflects the violation of each of the victims, and this will ordinarily operate as a significant limit upon the extent of any allowance for concurrency, and may in some cases militate against any allowance at all.[14] But in some cases there may nevertheless be scope for some reduction for partial concurrency.

    [69]None of this is intended to gainsay the flexibility that must be afforded to sentencing Judges in terms of the techniques or mechanisms through which they might determine to ensure proportionality.  While it would have been open to the sentencing Judge in the present case to allow for some partial concurrency, it would have been equally open to his Honour to address the concern to ensure proportionality in light of the connection between the offences through the mechanism of totality.  Put another way, it cannot be said that there was any process error when the sentencing Judge decided to make the notional head sentences for the three offences cumulative rather than partially concurrent.  The search for error involves inquiring further to consider whether the sentence in fact ultimately imposed did adequately allow for the interconnection between the offences.

    (Footnotes in original)

    [10]   Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-93 (Wells J).

    [11]   R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[106] (Kourakis J).

    [12]   R v W, PL [2017] SASCFC 119 at [41]-[43] (Doyle J, Bampton and Lovell JJ agreeing); R v Culley (2019) 134 SASR 92 at [18]-[23] (Kourakis CJ, Peek and Hughes JJ); Giordimania v The Queen [2020] SASCFC 28 at [34] (Doyle J, Nicholson and Hughes JJ agreeing).

    [13]   R v W, PL [2017] SASCFC 119 at [66]-[67] (Doyle J, Bampton and Lovell JJ agreeing).

    [14]   R v H, GJ(No 2) [2014] SASCFC 102 at [36] (Peek J, Blue and Stanley JJ agreeing); R v Harvey (No 2) [2014] SASCFC 106 at [68] (Bampton J, Kourakis CJ and Blue J agreeing); R v Wooldridge (2015) 123 SASR 422 at [74] (Gray ACJ, Peek and Nicholson JJ); R v W, PL [2017] SASCFC 119 at [55] (Doyle J, Bampton and Lovell JJ agreeing); R v B, RP [2019] SASCFC 9 at [43] (David AJ, Bampton and Parker JJ agreeing).

11. The Court proceeded to impose a single sentence in respect of all three offences:[15]

    Turning then to the considerations arising out of the interconnection between the offences, again for the reasons we have earlier set out, we consider that there would have been room for a degree of partial concurrency. Alternatively, the interconnection between the offences could have been addressed through a reduction via the principle of totality. However, in the circumstances of the present case, we consider it appropriate to address these considerations through the imposition of a single sentence of imprisonment utilising s 26 of the Sentencing Act.  We would impose a single sentence of 15 years imprisonment.  In our view, a head sentence of 15 years imprisonment appropriately reflects, and is a proportionate response to, both the overall criminality of the applicant offending and his personal circumstances.  We do not consider that any (further) allowance is required to reflect his age or ill health.

    [15]   Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [78].

12. A sentence is proportionate to both the circumstances of the offence, or offences, and the offender when all the sentencing objectives are accorded the relative weight warranted by those circumstances.  The application of the matrix of sentencing objectives to the whole of the circumstances of multiple offences will necessarily yield a sentence which is less than the accumulation of the proportionate sentences fixed by its application to each individual offence.  That is most obviously the case when multiple offences are committed in a single course of continuous conduct but may also be the case even when there are discrete criminal episodes for the reasons explained in R v Copeland.[16] 

    [16]   R v Copeland (No 2) (2010) 108 SASR 398 (Kourakis J).

13. The Sentencing Act now requires that when sentencing for offences against multiple victims, the sentencing court must identify the sentence which would have been imposed for the offending against each victim.[17]  Even before the legislative mandate it was good practice to do so.  Indicating the sentence which is appropriate in the individual case provides the offender and the public a clearer insight into how the sentence was fixed.  It also acknowledges the injury suffered by each of the victims and by doing so accords to each of them that human dignity which the offending denied them.

    [17]   Sentencing Act 2017 (SA) s 26.

14. 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

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

1. It follows, therefore, that even after the reductions for Mr Warner’s pleas of guilty and further reductions for the time he spent in custody and on home detention, a sentence of considerably more than 24 years would not have been disproportionate.

2. I would therefore dismiss the appeal.

   LIVESEY P:

   Introduction

3. This appeal raises the application of the sentencing standard in R v D[18] to sentencing for child sexual offences involving unlawful sexual intercourse by offenders in positions of trust and authority.  Ancillary issues arising on this appeal concern the application of the principles of concurrency and totality where the sentencing judge is required to impose a sentence for offending involving the sexual abuse of multiple victims over the course of a decade.

   [18]   R v D (1997) 69 SASR 413.

4. Although the Director challenged the approach taken to concurrency in Edmonds (a pseudonym) v The Queen,[19] that challenge should be rejected.  In my opinion, a number of the individual, notional sentences were manifestly excessive and, in any event, the starting point of 25 years imprisonment was manifestly excessive. 

   [19]   Edmonds (a pseudonym) v The Queen [2022] SASCA 11 (Livesey P, Doyle and David JJA).

5. I would set aside the sentence and resentence the appellant.

   The sentence imposed

6. The appellant pleaded guilty to five counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), for which the maximum penalty was in each case life imprisonment. The appellant also pleaded guilty to one count of indecent assault, contrary to s 56 of the CLCA, for which the maximum penalty was eight years’ imprisonment.

7. After making reductions for the appellant’s pleas of guilty, as well as for totality and time served, the appellant was sentenced to a term of imprisonment of 24 years.  As the appellant was sentenced as a ‘serious repeat offender’ a mandatory minimum non-parole period of four-fifths of the head sentence was fixed at 19 years, two months and 13 days. 

   The circumstances of the offending and the offender

8. I gratefully adopt the recitation of the facts and circumstances relevant to the appellant’s offending which are set out in the reasons of the Chief Justice.  I will refer to those only insofar as it is necessary to explain these reasons.

9. In overview, from early 2006 for around a decade the appellant engaged in very serious sexual offending against six male children who lived near the appellant and his family.  During that period the appellant exploited the close relationships between him, his family and those of his victims. 

10. During a four-year period between early 2006 and early 2010 when ZH was 12 to 15 (or 16) years he spent considerable time on weekends and at school holidays at the appellant’s house.  ZH described ‘many times’ when the appellant touched his penis and performed fellatio on him.  On one occasion, ZH masturbated the appellant before the appellant masturbated himself to ejaculation on the victim.

11. Some of the offending occurred when ZH was 14 years or older.  The sentencing judge commenced with a notional 12-year sentence for this offending. 

12. AH is the brother of ZH and the offending against him occurred over around four years between 2008 and 2012 when he was between 13 and 17 years.  During the first 18 months when AH was between 13 and 14 years, the appellant regularly masturbated him, as well as himself, in the presence of AH.  It occurred a couple of times each week.  From early 2010 when the victim was 14 years, there was a 12‑month period when the appellant engaged AH in sexual activity which included performing fellatio on him on five occasions.

13. Much of the offending occurred when AH was 14 years or older.  The sentencing judge commenced with a notional sentence of imprisonment of 10 years for this offending. 

14. MS lived next door to the appellant and regularly visited his house to do homework and play computer games or watch movies.  There were also sleepovers.  The offending occurred over four or five years between late 2011 and 2016.  MS was between 9 and 14 years.  During an initial period of less than 12 months there were 10 to 15 occasions when the appellant rubbed and masturbated the victim’s penis.  On one occasion, the appellant performed fellatio and on another he had the victim touch the appellant’s penis.  Later, from 2013 for about four years, the appellant regularly touched MS’s penis and the appellant regularly kissed MS on the lips (this kissing was uncharged offending). 

15. Most of the offending occurred before MS was 14 years.  The sentencing judge commenced with a notional sentence of 12 years’ imprisonment for this offending. 

16. CWM, together with his father and brother, lived with the appellant for a time because his father was friends with the appellant.  There were three occasions of offending commencing when CWM was 10 years.  When CWM was 10, the appellant rubbed his penis over and then under his clothes before performing fellatio on him.  There was a second occasion when the appellant performed fellatio on CWM.  The third occasion occurred in late 2018, when the appellant rubbed his penis before putting CWM’s hand in his pants.  The appellant then performed fellatio on CWM. 

17. All of the offending occurred before CWM was 14 years.  The sentencing judge commenced with a notional sentence of 12 years’ imprisonment for this offending. 

18. KS is the older brother of MS.  The offending spanned five years between 2011 to 2016 when KS was between 12 and 17 years.  On about 10 occasions, the appellant kissed KS and touched his penis over his clothing.

19. The sentencing judge commenced with a notional sentence of 10 years’ imprisonment for offending which occurred before and after the age of 14.

20. TE’s mother was a close friend of the appellant.  They visited regularly.  On one occasion in 2015 when TE was 15 years, the appellant put pornography onto the television and rubbed TE’s penis over his clothing. 

21. The sentencing judge commenced with a notional sentence of two years’ imprisonment for offending which occurred when TE was over the age of 14 years. 

22. The Chief Justice has set out in detail various of the victim impact statements which address the ongoing, traumatic consequences of the appellant’s offending on the victims and their families.  Whilst I do not repeat what his Honour has set out, I agree that it was important to recognise the devastating, ongoing effects of the appellant’s offending on the victims, their families and the community.  Those impact statements were considered at length in the sentencing judge’s remarks. 

23. It was necessary that the appellant’s sentence reflect the need for deterrence, both personal and general, as well as the need to protect the safety of the community.[20] It was nonetheless also necessary to address in a general way the particular circumstances of each offending, the periods it lasted and the extent and nature of it. This entailed addressing the extent to which it comprised unlawful ‘sexual intercourse’ contrary to s 49(1), within the meaning of s 5 of the CLCA, or some other offending, and whether it came within the sentencing guidance provided by R v D.[21]

    [20]   Sentencing Act 2017 (SA) s 3.

    [21]   R v D (1997) 69 SASR 413, 420 and 423 (Doyle CJ).

24. As the Chief Justice has outlined, the appellant was aged between his mid‑twenties and mid-thirties at the time of his offending, without prior criminal convictions.  He had been a victim of childhood sexual abuse during his difficult childhood and was diagnosed with a psychiatric disorder.[22] 

    [22]   Although personal circumstances are given less weight and a good record is of little significance when the offending involves ongoing courses of conduct, R v Quinn (2012) 114 SASR 354, [30]-[32] (Gray J, with whom Anderson and Stanley JJ agreed).

    The notional sentences imposed

25. After considering the reductions appropriate for the pleas entered, the sentencing judge imposed the following sentence, arrived at in the following way:

Count/ Victim	Offence	Maximum Penalty	Reduction for plea	Starting Point	Notional Sentence
Magistrates Court Information
1 / ZH	MUSR[23]	Life	20%[24]	12 years	9 years 7 months 7 days
2 / AH	MUSR	Life	20%	10 years (cumulative)	8 years
5 / MS	MUSR	Life	20%	12 years (cumulative)	9 years 7 months 7 days
7/ CWM	MUSR	Life	20%	12 years (cumulative)	9 years 7 months 7 days
Total:				46 years	36 years 9 months 19 days
District Court Information
1 / KS	MUSR	Life	5%[25]	10 years (cumulative)	9 years 6 months
3 / TE	Indecent Assault[26]	8 years	5%	2 years (cumulative)	1 year 10 months 25 days
Total:				12 years (cumulative)	11 years 4 months 25 days
Accumulated total				58 years	48 years 2 months 14 days
Totality (Reduction of approximately 48%)					(23 years 2 months 14 days)
Final sentence					25 years
Credit for time served in custody and on HD bail					(1 year)
Effective head sentence					24 years
Non-parole period					19 years 2 months 13 days[27]

[23] Maintaining an unlawful sexual relationship, contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA).

[24]   Being the maximum reduction available under s 40(3)(c) of the Sentencing Act 2017 (SA) (as at 9 September 2020).

[25]   Sentencing Act 2017 (SA) s 40(3)(e).

[26] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA).

[27] Being four-fifths of the head sentence as mandated by s 54(1)(b) of the Sentencing Act 2017 (SA).

1. The sentencing judge approached sentence by grouping the offences with the same reductions for the appellant’s pleas of guilty.  Otherwise, he accumulated the individual sentences.  The sentencing judge arrived at the final sentence by applying the totality principle.  He recognised that it was necessary to address the effect of accumulating individual sentences because he regarded a total sentence exceeding 48 years as ‘crushing’. 

   The sentencing guidance in R v D and later developments

2. The sentencing judge in this case sentenced by reference to the sentencing guidance provided by R v D because he was sentencing for child sexual offences involving unlawful sexual intercourse by an offender in a position of trust and authority. 

3. The appellant in R v D had pleaded guilty to one count of the persistent sexual abuse of a child, contrary to s 74(1) of the CLCA, for which the maximum penalty was life imprisonment.[28]  The victim was the appellant’s stepdaughter who, at the age of 13 years, was subjected to indecent assaults, cunnilingus, fellatio and digital penetration of the vagina on a near daily basis, over a period of two months. 

   [28]   R v D (1997) 69 SASR 413. Sub-section 74(7) of the CLCA then provided: ‘A person convicted of persistent sexual abuse of a child is liable to a term of imprisonment proportionate to the seriousness of the offender's conduct which may, in the most serious of cases, be imprisonment for life’.

4. There were a number of mitigatory features associated with the appellant’s offending.  These included that he had voluntarily stopped the offending after a relatively short period, and then participated in family counselling, knowing that his offending was likely to be revealed.  The appellant was genuinely remorseful and was otherwise of good character.[29]

   [29]   R v D (1997) 69 SASR 413, 416, 421 (Doyle CJ), 426 (Millhouse J), 429 (Bleby J).

5. The appellant was sentenced to six years’ imprisonment, and a non-parole period of four years and six months was fixed.  After reviewing a number of cases where six years had been imposed for more serious offending, over longer periods which only stopped when it was disclosed by the victims, the Court of Criminal Appeal concluded that the sentence was manifestly excessive and should be set aside.  The majority, Doyle CJ and Bleby J, imposed a new sentence of five years’ imprisonment with a three year and six-month non-parole period.  Millhouse J would have imposed a new sentence of four years with a two year and nine-month non-parole period.

6. The Court took the opportunity to address the proper approach to sentencing for multiple sexual offences against children, together with the ‘appropriate standard of punishment’ for offending of this kind.[30] Doyle CJ held that s 74 had not brought about any change in approach to sentencing for distinct offences punished on the basis that that they formed part of a course of conduct for like offending.[31]  In separate reasons, Millhouse J and Bleby J agreed.[32]

   [30]   R v D (1997) 69 SASR 413, 415 (Doyle CJ), 427-429 (Bleby J).

   [31]   R v D (1997) 69 SASR 413, 419-420 (Doyle CJ), citing R v Reiner (1974) 8 SASR 102, 105 (Bray CJ).

   [32]   R v D (1997) 69 SASR 413, 425 (Millhouse J), 427-428 (Bleby J).

7. The former Chief Justice explained that the individual sentences for the different kinds of offending should be identified, together with their maximum penalties. If the number of offences could be identified, there was no reason why that should not be done, though if there was difficulty with providing precision there was no requirement to reintroduce ‘the very problem at which s 74 was aimed’. [33]  It was sufficient to assess in a general way the duration, seriousness and frequency of the offending.

   [33]   R v D (1997) 69 SASR 413, 420 (Doyle CJ).

8. Turning to the issue of sentencing standards, Doyle CJ explained that sentences should be increased given the serious harm caused to the victims and to the community.  Though increased sentences alone would not protect children, the ‘courts must do what they can’:[34]

   This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. By this I mean cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority.

   It is not necessary to repeat what the court has said so often in the past about such offences. I merely add this. They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct.

   [34]   R v D (1997) 69 SASR 413, 423 (Doyle CJ).

9. Doyle CJ explained the need to ‘increase, to a moderate degree’ the level of penalty given the ‘insidious effect’ of sexual abuse upon the community:[35]

   Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.

   It appears that the sexual abuse of children by persons in a position of trust is quite widespread. It may not be occurring more often than it did in the past. It may well be that it is now being detected more often than it was. Be that as it may, the offences that are involved come before the courts with disturbing frequency. It is for those reasons that I consider that the court should increase, to a moderate degree, the level of penalty imposed for such offences.

   0I also consider, upon reflection, that there is a need to reflect more clearly the fact that the maximum sentence for unlawful sexual intercourse with children under 12 years of age is life imprisonment.

   [35]   R v D (1997) 69 SASR 413, 423 (Doyle CJ).

10. After explaining that it was not necessary for the court to give a warning before increasing the range of penalties for a particular type of offending,[36] warnings do play a part in the sentencing process; the heavier penalties Doyle CJ laid out should be imposed ‘hereafter’ and, as a matter of fairness, the appellant should be sentenced according to the standard reflected in the ‘previously decided cases’.[37]

    [36]   R v D (1997) 69 SASR 413, 424 (Doyle CJ) citing Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108, 113-114 (King CJ); R v Lewfatt (1993) 3 NTLR 41, 43-44 (Angel J), 45‑46 (Priestley J).

    [37]   R v D (1997) 69 SASR 413, 424 (Doyle CJ).

11. As for the new standards of imprisonment for 12 years (children under 12 years) and 10 years (children over 12 years), Doyle CJ explained that it was ‘impossible to be precise’:[38]

    In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.

    When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment.

    Under the approach that I propose, the sentence of six years imposed upon this appellant would have been an appropriate sentence, and the sentences imposed in the cases to which I have referred would all be somewhat higher.

    [38]   R v D (1997) 69 SASR 413, 424 (Doyle CJ).

12. Bleby J agreed, emphasising the awareness of the devastating and lifelong effects of sexual abuse on children, as well as the need to reflect factors other than the effect on the victim in sentencing:[39]

    … There is probably little to be gained by a statistical examination of the number of convictions for this type of offence. It would not surprise me if that showed a steady increase over recent years. However, that would not necessarily indicate an increase in prevalence of the conduct. It might reflect increased rates of detection. But even if that were so, that may well be because of greater community awareness of and openness in discussing such matters. With that openness has come a greater willingness to report allegations to persons in authority.

    However, with that community awareness has grown an enhanced awareness of the devastating and lifelong effects that sexual abuse can have on children. This case is a chilling example of that. The social background of many offenders (not just sexual offenders) includes sexual abuse of them as children. The need to break that cycle is obvious.

    Sentencing cannot be governed exclusively by the effect of the offence on the victim. It is but one of the many factors that must be taken into account …

    [39]   R v D (1997) 69 SASR 413, 430 (Bleby J).

13. In R v MJJ; R v CJN, Kourakis CJ made similar observations, particularly concerning the ‘substantial psychological burden’ carried by victims and their families, the ‘great social cost to the community’, together with the ‘great personal and social harm’ which demanded ‘a strongly deterrent sentencing response’.[40]

    [40]   R v MJJ; R v CJN (2013) 117 SASR 81, [84] (Kourakis CJ, with whom Vanstone J agreed).

14. The significant, lifelong emotional and psychological harm caused to victims can be inferred without direct evidence.[41]  Considerations such as these were made the subject of detailed findings by the Royal Commission into Institutional Responses to Child Sexual Abuse.[42]

    [41]   R v McIntyre (2020) 138 SASR 17, [58]-[60] (Doyle J, with whom Stanley and Hughes JJ agreed), and the cases there cited.

    [42]   Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) Preface and Executive Summary, 15-17.

1. In 2005 amendments were made to s 49(1) of the CLCA, increasing the age of the children addressed by that section from 12 years to 14 years.[43]  The effect has been that the R v D sentencing standard has since applied to children under and above the age of 14 years.[44]

   [43]   Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 11, effective from 15 May 2006.

   [44]   Edmonds (a pseudonym) v The Queen [2022] SASCA 11, footnote 9 (The Court); see also R v Marien [2011] SASCFC 116.

2. Though s 74 of the CLCA was repealed in 2008, s 68(1) of the Sentencing Act 2017 (SA) formerly required that the R v D standard be applied to offending under s 50 of the CLCA.[45] In 2021 s 68 of the Sentencing Act 2017 (SA) was deleted and a new provision was substituted, addressing sentencing standards for offences involving child sexual abuse.[46]

   [45]   Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA) s 12.

   [46]   Which commenced operation on 1 June 2022, Statutes Amendment (Child Sex Abuse) Act 2021 (SA) s 21. Section 68(1) now provides: ‘A court that is sentencing an offender in relation to a child sexual offence must have regard to the sentencing practices, principles and guidelines applicable when the sentence is imposed rather than when the offence is committed’. However, by s 68(2): ‘Nothing in this section requires a court to apply a maximum penalty that is greater than the maximum penalty that was applicable at the time the offence was committed’.

3. Later cases have emphasised that this sentencing standard has a broader utility, applicable to persistent offending beyond a period of some weeks (in R v D the period was two months) as well as assisting when sentencing for child sexual abuse more generally when committed by defendants in positions of trust and authority.[47] 

   [47]   R v AJW (2001) 80 SASR 246, [13]-[20] (Doyle CJ, with whom Prior and Nyland JJ agreed); R v Cave [2012] SASCFC 42, [12] and [35] (Doyle CJ, with whom Anderson J agreed), [75] (White J); R v Whittemore [2012] SASCFC 88, [18] (Kourakis CJ, with whom Nyland and Anderson JJ agreed). See also R v McIntyre (2020) 138 SASR 17, [47]-[51] (Doyle J, with whom Hughes and Stanley JJ agreed); R v RGC [2020] SASCFC 102 (Doyle J, with whom Stanley and Parker JJ agreed).

4. The sentencing standard assists to determine the appropriate sentence in an individual case.[48]  It should be applied unless an explanation is given.[49] Nonetheless, and as has been recognised many times - including in R v D - there is nothing rigid about sentencing standards.[50]  It is necessary to take into account all relevant circumstances, including any guilty plea, contrition, cooperation with authorities, ‘and so on’.[51] 

   [48]   See the analogy in Muldrock v The Queen (2011) 244 CLR 120, [27] (The Court).

   [49]   R v Bonython-Wright (2013) 117 SASR 410, 429 [98] (Kourakis CJ, with whom Blue and Stanley JJ agreed); R v T, SA (2014) 120 SASR 145, [2] (Kourakis CJ, with whom Kelly and Blue JJ agreed); R v Gibbs [2017] SASCFC 140, [14] (Vanstone J, with whom Kourakis CJ and Bampton J agreed); R v B,R [2019] SASCFC 86, [30] (Kourakis CJ, with whom Peek and Hughes JJ agreed).

   [50]   R v King (1988) 48 SASR 555, 557-558 (Cox J); Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [54]-[56] (The Court); Henry v R (2022) 403 ALR 369 [137] (Doyle JA, with whom Livesey P and David JA agreed).

   [51]   R v D (1997) 69 SASR 413, 424 (Doyle CJ).

5. When determining the appropriate sentence, it is usual to commence with the notional sentence appropriate as a starting point for each count or each victim, even when proceeding to impose one sentence under s 26 of the Sentencing Act 2017 (SA). Since 2022, s 26(2a) has required that the court indicate the sentence it would have imposed for any offences which involve different victims, or were committed on different occasions:[52]

   (2a)    If any of the offences in respect of which a single sentence is being imposed under this section—

   (a)     involve different victims; or

   (a)     were committed on different occasions,

   the court must indicate the sentence that would have been imposed in respect of each such offence had this provision not been applied.

   [52]   Inserted by Statutes Amendment (Child Sexual Abuse) Act 2021 (SA) s 19, operative from 1 June 2022.

6. This provision both reflects and entrenches what was regarded as good practice.[53]

   [53]   See R v Smoker (2016) 126 SASR 201 [69]-[79] (Lovell and Hinton JJ); R v Scott [2017] SASCFC 96, [51] (Lovell J, with whom Stanley and Parker JJ agreed). See also the Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, December 2017) Part VIII, 299‑307.

   Concurrency, totality and proportionality

7. In R v Hunter King CJ emphasised the necessity for punishment to be ‘fairly proportionate’ to the crime and with the ‘prevailing standards of punishment’:[54]

   It is necessary, however, that the time required to be spent in prison be adequate punishment for the crime committed.  The basic concepts of justice which underlie the criminal law require that the punishment be fairly proportionate to the crime in accordance with the prevailing standards of punishment.

   [54]   R v Hunter (1984) 36 SASR 101, 103 (King CJ).

8. Proportionality is just one of the common law principles which a sentencing court must heed, see s 10(1) of the Sentencing Act 2017 (SA). Proportionality has been described as ‘a limiting principle that operates to prevent the imposition of sentences that are manifestly excessive or manifestly lenient, in light of the objective circumstances of the offence’, so that a sentencing judge can ‘pursue any of the established purposes of sentencing within the parameters of the proportionate sentence’.[55] 

   [55]   Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (Report No 103, 2006), 150 [5.6].  See also Hoare v The Queen (1989) 167 CLR 348, 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

9. The authorities addressing sentencing for multiple offences, particularly where there are multiple victims, demonstrate that a number of techniques have been employed to ensure that a proportionate sentence is imposed.  In R v Blain King CJ explained how the partial accumulation of sentences may reflect both each crime and the ‘total course of conduct involved’:[56]

   [G]enerally speaking it is desirable that the sentencing judge should impose for each of the crimes charged in the counts in the information a punishment which reflects the degree of criminality involved in the facts of that particular crime and that a punishment commensurate with the total course of conduct involved should be achieved by accumulating the sentences on the charges in the information to a suffıcient degree to reach a total punishment which is the proper punishment for the course of conduct disclosed both by the charges in the information and the matters asked to be taken into account. I do not say that is the only way in which it can be done, but it seems to me that it is the most appropriate way.

   [56]   R v Blain (1984) 115 LSJS 270, 273.

10. In this case the Director emphasised cases involving multiple victims of sexual abuse where the sentences were accumulated, rather than made concurrent, before the principle of totality was applied in order to arrive at the final sentence.[57] In his written submissions the Director referred to the decision of the Court of Criminal Appeal in R v AJW.  In that case the offending concerned five children over three years, most of whom were six or eight years when the sexual abuse commenced.  They were generally under the age of 12 years and the offending involved unlawful sexual intercourse, indecent assaults and gross indecency.  The offending was described in a general way by Doyle CJ as follows, in terms which are regrettably familiar:[58]

    Overall, the offences indicate that the offender put his own sexual gratification ahead of every other consideration, betraying the trust of those with whom he was friendly and with whose children he was dealing. His conduct also demonstrates a complete lack of concern for the welfare of the children.

    The offending is very serious. Each offence is serious, because of the potential for serious harm to the future development of the young children concerned. Only time will tell what effects the offending has on them.

    Taken together, the offences reveal a continuing pattern of serious offending, which makes it clear that even the opportunistic offences cannot be described as isolated aberrations, or as due to an unexpected loss of self-control. The pattern of offending indicates that the offender sought out and then exploited opportunities to offend.

    [57]   R v AJW (2001) 80 SASR 246 (Doyle CJ, with whom Prior and Nyland JJ agreed); R v Cave [2012] SASCFC 42; R v H, GJ [2014] SASCFC 102, [36] (Peek J, with whom Blue and Stanley JJ agreed); R v Harvey (No 2) [2014] SASCFC 106, [68] (Bampton J, with whom Kourakis CJ and Blue J agreed); R v B, RP [2019] SASCFC 9, [43] (David AJ, with whom Bampton and Parker JJ agreed); R v B, R [2019] SASCFC 86 (Kourakis CJ, with whom Peek and Hughes JJ agreed).

    [58]   R v AJW (2001) 80 SASR 246, [13]-[15] (Doyle J).

11. After pointing out that the defendant had exhibited no remorse or regret and that no medical or psychiatric explanation had been offered for his behaviour, Doyle CJ concluded that the ‘prospects of rehabilitation do not seem good, because there is nothing to suggest that the appellant will, on his release, make an effort to avoid further offending’.[59]

    [59]   R v AJW (2001) 80 SASR 246, [17] (Doyle J).

12. Doyle CJ emphasised that the R v D standard ‘applies to other offences of sexual abuse involving young children’.[60]  For the most serious offending involving the first victim, the Chief Justice imposed a sentence of 14 years.  For the balance of the offending involving the other victims, his Honour imposed a sentence of eight years, making a total of 22 years which was reduced on the grounds of totality to 18 years:[61]

    I accept that some reduction from the total of 22 years imprisonment is appropriate on grounds of totality, bearing in mind that this is the first occasion on which the offender has been imprisoned, and that if the whole sentence is served, he would not be released until he is about 55 years of age. I consider that it would have been appropriate to fix a head sentence of imprisonment for 18 years, and to fix a non-parole period of 11 years. Allowing for the two years served, that produces a head sentence of imprisonment for 16 years, and a non-parole period of nine years.

    [60]   R v AJW (2001) 80 SASR 246, [20] (Doyle J).

    [61]   R v AJW (2001) 80 SASR 246, [29] (Doyle J).

13. Finally, before concluding that it was appropriate to grant the Crown permission to appeal, Doyle CJ explained that the variability in the circumstances of the offending and the offenders meant there was a need to ‘hedge’ the sentencing standard in R v D with ‘a number of qualifications’:[62]

    This is offending of a kind in which the circumstances of the offences and of the offender are very variable, despite the constant underlying feature of the abuse of young vulnerable children by an adult for the purposes of sexual gratification. For that reason, the approach to sentencing indicated by me in R v D was necessarily hedged with a number of qualifications.

    Despite all that, the interests of society and the protection of children require this Court to maintain adequate standards of punishment for offending of this kind. It is clearly a deep‑seated problem in our society, and it is equally clear that offenders, usually men, are continuing to exploit children for their own gratification. The Court must keep an eye on the need to deter such persons if possible.

    [62]   R v AJW (2001) 80 SASR 246, [33]-[34] (Doyle J).

14. In R v Copeland (No 2) the Court of Criminal Appeal addressed the question of partial concurrency in a case involving multiple armed robberies all committed within an hour or so.[63]  After citing the well-known remarks of Wells J in Attorney‑General v Tichy,[64]  White J rejected the proposition that all sentences should be made wholly concurrent because there were ‘both common and disparate features of the offending’.[65]  In the course of his reasons, Kourakis J explained how partial concurrency could be used to reflect the extent to which earlier sentences met particular sentencing objectives:[66]

    … the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.

    [63]   R v Copeland (No 2) (2010) 108 SASR 398.

    [64]   Attorney-General (SA) v Tichy (1982) 30 SASR 84, 92-93.

    [65]   R v Copeland (No 2) (2010) 108 SASR 398, [85] (White J).

    [66]   R v Copeland (No 2) (2010) 108 SASR 398, [85] (White J).

15. After deprecating any suggestion of ‘hard and fast rules’, and warning against characterising ‘multiple offences as a single course, or a number of courses, of conduct’, Kourakis J explained the broad scope for concurrency:[67]

    Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.

    The considerations which govern the question of concurrency, together with a consideration of the offender’s prospects for rehabilitation, are, I think, the same matters which inform the reductions which are sometimes made for totality. Where, for example, a sentencing judge commences with a notional sentence which is calculated by simply multiplying the sentence which would have been imposed on one of a series of offences, by the number of offences committed in that series, there will almost always need to be a substantial reduction for totality. However, if the notional head sentence is arrived at after making proper allowance for the appropriate degree of concurrency, the artificiality commented on by Bleby J in R v Nylander will seldom arise.[68] In such a case the notional sentence may only need to be adjusted, if at all, to allow some scope for rehabilitation in the circumstances of the particular offender.[69]

    [67]   R v Copeland (No 2) (2010) 108 SASR 398, [106]-[107] (Kourakis J).

    [68]   R v Nylander (2003) 228 LSJS 24, [81]-[85], ‘There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person’.

    [69]   See R v Cramp (2010) 106 SASR 304, [51]-[52].

16. Whilst in R v Cave Doyle CJ did not regard it as appropriate to make any of the sentences concurrent, a reduction remained open on the grounds of totality, or ‘on a merciful basis’ by reference to the offender’s age.[70]  By contrast, in the same case White J (albeit in dissent as to the outcome) carefully reviewed the authorities relating to proportionality, totality and concurrency, giving particular attention to the decision of the High Court in Mill v The Queen, before concluding in favour of partial concurrency:[71]

    In summary, as I understand it, the totality principle has at its heart considerations of proportionality.  It requires courts imposing cumulative sentences to consider the overall effect of the proposed sentences.  If on that consideration the Court concludes that, despite the individual sentences otherwise being appropriate, their combined effect is disproportionate to the overall gravity of the offences and to the offender’s circumstances, it should make some adjustment, preferably by ordering partial concurrence with the sentences rather than by reducing the length of an individual sentence.  However, in some cases, the objective gravity of the offences will be such that the minimum sentences which are appropriate cannot be reduced even if this means that the remaining life of the offender will be spent in prison.

    [70]   R v Cave [2012] SASCFC 42, [26] (Doyle CJ, with whom Anderson J agreed).

    [71]   R v Cave [2012] SASCFC 42, [63] (White J), citing Mill v The Queen (1988) 166 CLR 59, 63: ‘in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentence wholly or partially concurrent’, see also 66-67.

17. White J did not suggest that he was departing in any material respect from the principles described by Doyle CJ, nor those which he and Kourakis J had discussed in R v Copeland (No 2).  White J referred to Western Australian authority before accepting that a sentencing judge should ‘consider whether the earlier sentence may achieve in part some of the deterrence and rehabilitation to which the second sentence would otherwise be directed’.[72]

    [72]   R v Cave [2012] SASCFC 42, [75] (White J).

18. A more recent example where totality and concurrency have been utilised is provided by R v B, R, where Kourakis CJ applied both principles:[73]

    There is little reason to impose concurrent sentences when offending of this kind is committed against different victims even though the criminogenic causes in the offender are the same.  However, RB is now 71 years of age.  To impose cumulative sentences would be crushing.

    The approach which best guards against error when sentencing for multiple offences in a case such as this is to fix sentences within the accepted range before adjusting the end result for totality by determining the appropriate degree of concurrency.

    [73]   R v B, R [2019] SASCFC 86, [34]-[35] (Kourakis CJ, with whom Peek and Hughes JJ agreed).

19. In that same case Peek J referred to ‘the disposition of the offences against both JD and AB [being] inextricably linked due to considerations including partial concurrency, totality, the serious repeat offender legislation and the appropriate non-parole period’.[74]

    [74]   R v B, R [2019] SASCFC 86, [41] (Peek J), when deciding that the Crown should be granted permission to appeal against the sentences imposed in respect of both victims.

20. In Edmonds (a pseudonym) v The Queen, a case involving multiple victims of child sexual abuse, in the passages to which the Chief Justice has referred, the same broad approach to concurrency was articulated.  The Court emphasised that ‘an essential aspect of sentencing an offender convicted of multiple offences is to ensure that the sentence ultimately imposed is proportionate to the overall criminality inherent in the offending and the circumstances of the offender’,[75] before concluding that there may be sufficient reason to make sentences at least partially concurrent ‘where the imposition of a penalty for one of the offences affects what is necessary to achieve the deterrent, punitive or rehabilitative objectives of the sentence for other offending’.[76]

    [75]   Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [59] (The Court).

    [76]   Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [67] (The Court).

21. That same broad approach to concurrency may be seen in White (a pseudonym) v The Queen, where the historical derivations of concurrency were charted before the Court endorsed ‘[the] more expansive approach to the application of concurrency, particularly partial concurrency’ taken in R v Copeland (No 2) and Edmonds (a pseudonym) v The Queen. [77]

    [77]   White (a pseudonym) v The Queen [2022] SASCA 78, [47] (The Court).

22. The attack made on Edmonds (a pseudonym) v The Queen by the Director must be rejected. 

23. There are a number of Western Australian decisions where this same approach to concurrency has been employed, usually on the grounds of totality.[78]

    [78]   SCN v The State of Western Australia [2017] WASCA 138; SAL v The State of Western Australia [2021] WASCA 192; Ugle vThe State of Western Australia [2022] WASCA 135.

1. As the Chief Justice has emphasised in his reasons, the scope for some measure of concurrency in such cases does not arise from any overlap in the offending itself.  Rather it arises from the fact that the similar nature, motivation and timing of the offences, and the overlap in criminogenic factors leading to those offences, will often mean that there is a real prospect that the imposition of a significant sentence of imprisonment in respect of one of the offences will assist in achieving the sentencing objectives intended to be achieved by the sentences for the others.[111]

   [111] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [64] (Livesey P, Doyle and David JJA).

2. The reasons in Edmonds (a pseudonym) v The Queen acknowledge that it will remain important in cases involving multiple victims of sexual offending to ensure that the sentence ultimately imposed adequately reflects the violation of each of the victims; and that this will ordinarily operate as a significant limit upon the extent of any allowance for concurrency.[112] 

   [112] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [69] (Livesey P, Doyle and David JJA).

3. The reasons in Edmonds (a pseudonym) v The Queen also acknowledge the flexibility that must be afforded to sentencing judges in terms of the techniques or mechanisms that may be used in structuring a sentence in order to achieve the objective of an ultimate sentence that is proportionate to the overall circumstances of the offending and the offender.[113]

   [113] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [59]-[69] (Livesey P, Doyle and David JJA).

4. It has always been good sentencing practice, even when intending to impose a single sentence under s 26(1) of the Sentencing Act 2017 (SA), to identify the individual sentences that would have been imposed in respect of each offence. That is now required by s 26(2a). Having identified those individual sentences, some judges may prefer to structure the sentence to be imposed by making those sentences cumulative but then making a reduction in the ultimate sentence by invoking the principle of totality, or by simply imposing a single sentence under s 26(1) of the Sentencing Act.  Such an approach may be particularly apposite in a case involving a large number of offences, where a process of making individual sentences partially concurrent may become cumbersome, if not artificial or unrealistic.[114]

   [114] R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276 at [31] (Lovell J, Nicholson and Parker JJ agreeing).

5. In my view, however, partial concurrency is often a useful mechanism for achieving a proportionate sentence in the case of a defendant convicted of sexual offences against multiple child victims.  By identifying individual sentences, and then exposing the extent to which each sentence has contributed to the overall sentence, this approach brings a level of transparency, if not robustness, to the sentencing process.  To my mind, it serves to underscore the importance of the violation to each of the victims, and the need to reflect and vindicate the dignity of each of those victims.  The transparency and robustness of this approach may be contrasted with the, at times, unsatisfactory approach of arriving at a very large cumulative sentence and then significantly reducing this for totality in order to ensure proportionality.  While those experienced in sentencing for multiple offences will understand the nuanced task that has been undertaken, such an approach can at times appear unsatisfactory because of the somewhat opaque, if not arbitrary, appearance of the (often large and unexplained) reduction made in arriving at the final sentence.

   Application of principles to the present case

6. In applying the principles I have identified to the present case, it is appropriate to commence by considering the head sentences applicable to each offence before then considering the structure and mechanisms used to ensure proportionality in the ultimate sentence.  In so doing, it is of course important to remember that this task is being undertaken in the context of an appeal against sentence where, as the Chief Justice has explained, the complaint is one of manifest excess in the ultimate sentence.

   The individual head sentences

7. The appellant was convicted on his pleas of guilty of five counts of maintaining an unlawful sexual relationship with a child,[115] with the victims referred to as ZH, AH, MS, CWM and KS respectively; and one count of indecent assault[116]  against TE.

   [115] In contravention of s 50(1) of the CLCA, with a maximum penalty of life imprisonment.

   [116] In contravention of s 56 of the CLCA, with a maximum penalty of eight years imprisonment.

8. Before turning to the circumstances of the offending against each victim separately, it is convenient to commence by mentioning the personal circumstances of the appellant.  He was born on 3 January 1980.  He is now 42 years of age, and was between 26 and 36 years of age at the time of his offending.  He had no criminal antecedents before his offending, although as the sentencing judge recognised, little if any weight can be attached to the otherwise good character of an offender in circumstances where he is being sentenced for multiple offences committed over a very extended period of time. 

9. The appellant’s personal background has been summarised in the Chief Justice’s reasons.  His difficult childhood, including being a victim of sexual abuse, is deserving of sympathy and, according to Dr White, is likely to have blinded him to the seriousness of, and harm caused by, his offending.

10. The Chief Justice has also mentioned the various victim impact statements provided to the sentencing judge.  Each provided detail of the traumatic and prolonged consequences of the offending upon the victims and their families that is to be expected in such cases.

11. Turning to the offending against ZH, he was born in February 1993.  His family lived over the road from the appellant and his family.  He and his brothers (including AH, the second victim referred to below) would spend a lot of time on weekends, and during school holidays, at the appellant’s house.  The offending against him occurred over an approximately four or five year period from about early 2006 to early 2010, when ZH was between about 12 and 15 or 16 years of age.  The offending consisted of multiple instances of the appellant touching the victim’s penis and performing fellatio on the victim, with the victim describing this conduct as having occurred regularly and ‘many times.’  The victim also described one occasion when the appellant made the victim masturbate him, before then masturbating himself and ejaculating on the victim’s chest.

12. The sentencing judge used a starting point of 12 years for the offending against ZH.  In my view this was an appropriate starting point.  The nature of the sexual acts involved, while plainly serious, was not as intrusive and depraved as often occurs in the case of offending attracting the standard in R v D.[117]  It is also relevant that some of the offending occurred when the victim was 14 years of age or older.  That said, the duration and frequency of the offending meant that a sentence of 12 years, was appropriate.

    [117] See the reference to the caution that is necessary when considering the seriousness of the particular sexual acts involved in Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [55]-[56] (Livesey P, Doyle and David JJA), applying Musgrave v State of Western Australia (2021) 289 A Crim R 17 at [3]-[8] (Quinlan CJ).

13. The second victim was AH, who was born in September 1995 and is the younger brother of ZH.  The offending against him occurred over an approximately four year period from about 2008 to 2012, when AH was between about 13 and 17 years of age.  The offending was described as comprising two stages.

14. The first stage occurred over a period of about 18 months (when the victim was between 13 and 14 years of age), and involved the appellant regularly masturbating the victim and masturbating himself in the victim’s presence.  The offending generally occurred in the morning when the appellant was at the victim’s house in order to drive him to school, and occurred a couple of times per week.

15. The second stage commenced in early 2010 (when the victim was 14 years of age) when the victim’s family moved house.  The appellant no longer drove him to school, but the two families maintained contact.  For a period of about 12 months the appellant continued to engage the victim in sexual acts, including performing fellatio on him on about five occasions.  The offending ceased when the victim’s parents had a falling out with the appellant.

16. The sentencing judge used a starting point of 10 years for the offending against AH.  Again, I consider this to have been an appropriate starting point.  While the nature of the sexual acts involved in this offending was similar to those involved in the offending against ZH, and the offending extended over a four-year period, it was relevant that AH was a bit older when most of the offending against him occurred.

17. The third victim was MS, who was born in November 2002.  The offending against him occurred over an approximately four-to-five-year period between about 2012 and 2016, when MS was between about 9 and 14 years of age.  MS is the brother of KS (the fifth victim, mentioned below).  They lived next door to the appellant, and would regularly visit his house to do their homework, play computer games and watch movies.  They would sometimes sleep over at the appellant’s house.  The offending was again described as comprising a course of conduct consisting of two stages.

18. The first stage lasted less than 12 months, commencing when the victim was nine years of age.  It involved the appellant rubbing and masturbating the victim’s penis on about 10 to 15 occasions, an occasion when the appellant caused the victim to touch the appellant’s penis, and an occasion when he performed fellatio on the victim.  In late 2012, the victim told the appellant ‘it has to stop’, and after this the appellant did not touch the victim’s penis for some time. 

19. The second stage commenced in 2013 and lasted for about four years.  During this period, the appellant regularly touched the victim’s penis over his clothes while hugging him.  Whilst not charged, the appellant would also kiss the victim on the lips.  It appears that the offending concluded in 2016 with an (uncharged) occasion when the appellant attempted to put his hand into the victim’s pants, but the victim grabbed his wrist and told him to stop.

20. The sentencing judge used a starting point of 12 years imprisonment for the offending against MS.  Once again, this starting point was appropriate.  While the offending generally involved less serious sexual acts than the offending against both ZH and AH, it is significant that it commenced when MS was only nine years of age, and once again occurred on a large number of occasions over an extended period of time.

21. The fourth victim was CWM, who was born in November 2006.  The offending against him occurred over an approximately two-year period between about late 2016 and late 2018, when he was between about 10 and 12 years of age.  CWM was the son of a friend of the appellant.  He, together with his father and brother, lived with the appellant for a while.  The victim described three occasions of sexual offending against him by the appellant.

22. The first occurred when he was 10 years of age.  The appellant rubbed the victim’s penis, initially through his clothes and then under his clothes, before then performing fellatio on the victim.  The appellant tried to place the victim’s hand down the appellant’s pants (uncharged), but the victim pulled his hand away.  The appellant told the victim not to tell anyone, and indeed said that if he told his dad, his dad might hurt the appellant.  The second occasion occurred while CWM was getting ready for the appellant to drive him to school, and involved the appellant performing fellatio on the victim.  The third occasion occurred in late 2018.  The victim was playing a computer game and the appellant rubbed his penis through his clothes before then putting the victim’s hand in his pants, touching the victim’s penis, and then performing fellatio on him.

23. The sentencing judge used a starting point of 12 years for the offending against CWM.  In my view, whilst the nature of the acts was relatively serious, and CWM was young on each occasion, this starting point was high given that the charged offending was confined to three occasions.

24. The fifth victim was KS, who was born in September 1999 and is the younger brother of MS.  The offending against him occurred over an approximately five‑year period between 2011 and 2016, when he was between about 12 or 13 years of age, and about 17 years of age.  The offending involved multiple occasions of the appellant kissing the victim on his lips and touching his penis through his pants.  The victim said it occurred on about 10 occasions.

25. The sentencing judge used a starting point of 10 years for the offending against KS.  I consider that this starting point was also high, given that the sexual acts were confined to kissing the victim and touching his penis through his clothes, occurred on a relatively limited number of occasions, and spanned a period of time for some of which the victim was 14 years of age or older.

26. The sixth victim was TE.  He was born in June 2000.  His mother was a close friend of the appellant, and they used to visit him regularly.  The offending against TE involved a single occasion in mid-2015, when the victim was about 15 years of age.  The victim was watching television in the appellant’s lounge room.  There was another person on another couch in the same room.  The appellant began playing pornography on the television, and seated himself with the victim under a blanket.  The appellant moved his hand down to the waist band of the victim’s shorts, rubbing the victim’s penis.  The victim told him the appellant to stop, and the appellant initially withdrew his hand.  The appellant soon moved his hand back down to the victim’s stomach, whispering ‘is this okay’.  When the victim said ‘no’, the appellant again withdrew his hand and ceased touching the victim.

27. The sentencing judge used a starting point of two years imprisonment for this offending.  While perhaps high, there is no challenge to this component of the appellant’s sentence.

28. In summary, I consider that the starting points used by the judge were generally appropriate.  While I have described some of them as being high, I do not mean to suggest that they were necessarily manifestly excessive.  In any event, as the Chief Justice has pointed out, the issue of manifest excess on this appeal must be assessed by reference to the overall sentence ultimately imposed, and a consideration of whether that sentence was disproportionate to the overall criminality of the appellant’s conduct, having due regard to his personal circumstances.  For that reason, it is appropriate to turn now to the sentencing judge’s approach in arriving at the ultimate sentence to be imposed, and in particular in ensuring proportionality in that ultimate sentence.

    The proportionality of the ultimate sentence imposed

29. The passage from the sentencing judge’s reasons in which he explained how he arrived at the ultimate sentence to be imposed has been set out in full in the Chief Justice’s reasons.

30. By way of summary, after identifying the individual starting points mentioned earlier in these reasons, the sentencing judge reduced each to reflect the appellant’s pleas of guilty.  He reduced the sentences for the offending against each of the first four victims by 20 per cent, and the sentences for the offending against each of the last two victims by 5 per cent, being in each case the maximum reduction available given the timing of the pleas.  The individual sentences may be summarised as follows:

Victim	Starting point	After reduction for plea
ZH	12 years	9 years 7 months 6 days
AH	10 years	8 years
MS	12 years	9 years 7 months 6 days
CWM	12 years	9 years 7 months 6 days
Sub-total	46 years	36 years 9 months 19 days[118]
KS	10 years	9 years 6 months
TE	2 years	1 year 10 months 25 days
Sub-total	12 years	11 years 4 months 25 days
Cumulative total	48 years 2 months 14 days
Reduced for totality	25 years
(less time served)	(1 year)	24 years
Non-parole period	4/5 of the head sentence	19 years 2 months 13 days

[118] The 19 days is explicable by the fact that the sentencing judge applied the discount at a global level across all four offences rather than on the offence by offence basis set out in this table.

1. The sentencing judge split the offences into two groups: the first group being the offences against the first to fourth victims, to which guilty plea reductions of 20 per cent were applicable; the second group being the offences against the fifth and sixth victims, to which guilty plea reductions of 5 per cent were applicable.

2. The judge made each of the reduced sentences cumulative upon one another, arriving at a sub-total for the first group of offences of 36 years 19 months and 9 days imprisonment, and a sub-total for the second group of offences of 11 years 4 months and 25 days imprisonment, giving an overall total of 48 years 2 months 14 days imprisonment.

3. Having identified this total, the sentencing judge recognised that it would not be appropriate to impose a sentence of this length.  His Honour said:

   Such a sentence would, of course, be crushing upon you.  Standing back, looking at your entire course of conduct, all matters personal to you and applying the principle of totality, I reduce that to a sentence of 25 years.

4. The sentencing judge’s invocation of the principle of totality was entirely orthodox and appropriate, although I would observe in passing that I regard the reference to ‘crushing’ in this context as unnecessary and potentially confusing.  As has been pointed out in several decisions of this Court,[119] when invoked in the context of a case such as the present, reference to the need to avoid a sentence that would be crushing is merely a description of an aspect of the overarching obligation of the sentencing court to impose a sentence that is proportionate.  It is no more than a description of the need to ensure that a sentence is proportionate in the sense that, having regard to the rehabilitative objective of a sentence, it leaves the defendant with the hope and incentive of achieving rehabilitation during his lifetime.

   [119] White (a pseudonym) v The Queen [2022] SASCA 78 at [54]-[56] (Lovell, Bleby and David JJA); Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [60] (Livesey P, Doyle and David JJA); R v Scott [2017] SASCFC 96 at [51] (Lovell J, Stanley and Parker JJ agreeing); and R v Smoker (2016) 126 SASR 201 at [75]-[85] (Lovell and Hinton JJ), explaining several earlier authorities, including R v E, AD (2005) 93 SASR 20 at [37] (Doyle CJ, Debelle and Besanko JJ agreeing).

5. While an application of the principles of totality was orthodox and appropriate, the issue remains whether the reduction made was appropriate in the sense that it was sufficient to ensure that the ultimate sentence was not manifestly excessive.

6. The principles governing consideration of whether a sentence is manifestly excessive are well known and need not be repeated.  In summarising those principles, it is often said that determination of whether or not a sentence is manifestly excessive is a conclusion that does not permit of much analysis.  That is all the more so in a case involving a challenge to an ultimate sentence imposed in respect of multiple offences, and arrived at by invoking a single reduction for totality.

7. In considering the reasonableness of the sentence imposed, I have found it useful to have regard to the sentence that might have been imposed through an application of the approach to concurrency that I have described earlier in these reasons.  In structuring a sentence in this way, it is often useful to commence with the head sentence identified for the first offence, or perhaps the most serious of the offences, and to then build the sentence by grouping and adding the sentences for the other offences as appropriate.

1. I acknowledge that this approach can become a bit cumbersome when dealing with as many as six offences.  But if I were to have sentenced the appellant using the sentencing judge’s starting points (with the reductions for guilty pleas that he identified), after allowing for some rounding, I would have started with the sentence of 9 years 7 months for the offending against ZH.  I would then have made each of the other sentences partially concurrent to an increasing extent, and hence cumulative to a decreasing extent.  Assuming the sentence for the offending against AH was made partially concurrent as to, say 50 per cent, that would give an aggregate sentence for those two sentences of 13 years 7 months imprisonment.  If each of the other sentences were also made partially concurrent to a similar extent, then the aggregate sentence would have been in excess of 28 years.  Even allowing for an increasing measure of concurrency as the individual sentences were cumulated, which in my view would have been appropriate, the aggregate sentence would nevertheless have reached something approximating the 25 years imposed by the sentencing judge (before any credit for time served).

2. I have already mentioned that, in my view, some of the individual sentences were high, although not necessarily unreasonably so.  Even allowing for this, I am not satisfied that the aggregate sentence arrived at by the sentencing judge was manifestly excessive.  To the contrary, I am satisfied that it was within the permissible range having regard to the overall criminality in the appellant’s offending and his personal circumstances.  I say this bearing in mind not only that the offending spanned a period of about 10 years, but also involved offending against six children.  The offending against each of these children (other than TE) lasted multiple years, and began when the children were very young.  The appellant had countless opportunities to reflect upon, and desist from, his sexual offending.  However, rather than doing so, he continued to offend, and to do so against additional victims.  By doing so, he caused significant and ongoing trauma to each of the victims and their families.  Despite the appellant’s difficult upbringing, and personal circumstances more generally, a very strong sentencing response was appropriate, indeed required.  Whilst the sentence ultimately imposed was a heavy one, it was not manifestly excessive.

3. For the reasons given, I would grant permission to appeal, but dismiss the appeal.