KERRY MARK FIELD BURANYI-TREVARTON v THE KING [2025] SASCA 117

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TRACEY) DCCRM-22-361 Applicant: KERRY MARK FIELD BURANYI-TREVARTON Counsel: MS J ABBEY KC WITH MR O ALI - Solicitor: BTD LAWYERS Respondent: THE KING Counsel: MS L DUONG WITH MR J ENG - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 12/09/2025 File No/s: SCCRM-25-001060 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BURANYI-TREVARTON v THE KING [2025] SASCA 117 Judgment of the Court of Appeal (The Honourable Justice David, the Honourable Auxiliary Justice Lovell and the Honourable Auxiliary Justice Mullins) 16 October 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE Application for permission to appeal against sentence. The applicant was convicted after a trial by judge alone on two counts of aggravated communication with the intention of making a child amenable to sexual activity (Counts 2 and 3). The applicant was a teacher at the victims’ primary school. The circumstances of aggravation were that the applicant was aware that each victim was under the age of 14 at the time of each offence. Before the trial, the applicant pleaded guilty to one count of indecent assault (Count 1). The sentencing Judge utilised s 26 of the Sentencing Act 2017 (SA) in relation to Counts 2 and 3 and imposed a head sentence of six years, five months and four days imprisonment with a non-parole period of five years, one month and 22 days. The sentencing Judge indicated notional sentences of three years and six months for both Counts 2 and 3. The applicant complains that the sentence imposed was manifestly excessive with a particular complaint that the notional sentences indicated in respect of Counts 2 and 3 were manifestly excessive. Held, per the Court, granting leave to appeal and allowing the appeal: -- 1 of 12 -- 1. The final sentence imposed for Counts 2 and 3 was manifestly excessive. 2. The sentence imposed in the District Court is set aside. 3. On resentence, the applicant is sentenced to five years, five months and four days imprisonment with a non-parole period of four years, four months and four days. Criminal Law Consolidation Act 1935 (SA) s 56, s 63B(3)(b); Sentencing Act 2017 (SA) s 26, s 53, referred to. Ackland v The King [2025] SASCA 15; Cuong v The Queen [2021] SASCA 89; Hackett v The Queen [2021] SASCA 32; Ndreka v The Queen [2021] SASCA 32; Walsh v The King [2024] SASCA 146, considered. -- 2 of 12 -- BURANYI-TREVARTON v THE KING [2025] SASCA 117 Court of Appeal – Criminal: David JA, Lovell and Mullins AJJA THE COURT: Introduction 1 Following a trial by judge alone, the applicant was found guilty of two counts (Counts 2 and 3 on the Information) of aggravated communication with the intention of making a child amenable to sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”).1 Before the trial commenced, the applicant pleaded guilty to one count of indecent assault contrary to s 56(1) of the CLCA (Count 1 on the Information).2 2 For all of the offending the sentencing Judge imposed a final sentence of six years, five months, and four days imprisonment constructed as follows: • in relation to Count 1, the sentencing Judge imposed a term of imprisonment of one year, five months, and four days having allowed a discount of 5% for the applicant’s plea of guilty; • in relation to Count 2, the sentencing Judge indicated a notional sentence of three years and six months imprisonment; • in relation to Count 3, the sentencing Judge indicated a notional sentence of three years and six months imprisonment; • in relation to Counts 2 and 3, having disclosed her notional sentences, the sentencing Judge, using s 26 of the Sentencing Act 2017 (SA) (“Sentencing Act”) and allowing for some concurrency imposed one sentence of five years imprisonment; • the sentencing Judge ordered that the sentence of five years imprisonment was to be served at the expiration of the sentence imposed on Count 1, leaving a final head sentence of six years, five months, and four days imprisonment; and • upon conviction of the offences the applicant was deemed to be a serious repeat offender.3 Accordingly, the sentencing Judge fixed a non-parole period of five years, one month, and 22 days being 80% of the sentence. 1 The maximum penalty at the time of the offending was 12 years imprisonment. The maximum penalty increased to 15 years on 1 October 2022 pursuant to the Statutes Amendment (Child Sex Offences) Act 2022 (SA). 2 The maximum penalty is eight years imprisonment. 3 Sentencing Act 2017 (SA) s 53. -- 3 of 12 -- [2025] SASCA 117 The Court 2 3 The sentencing Judge’s remarks, and the construction of the final sentence establish that she used s 26 of the Sentencing Act only in relation to Counts 2 and 3. 4 The applicant complains that the sentence imposed was manifestly excessive and seeks leave to appeal the sentence on three grounds: 1. the sentencing Judge erred in her approach to accumulation of the sentences imposed on Counts 2 and 3. 2. the sentencing Judge erred in not properly taking account of the fact that sentences for Counts 2 and 3 were imposed in respect of the same conduct by the applicant. 3. the sentence is manifestly excessive. 5 For the reasons which follow, we would allow the appeal against sentence on Ground 3. We set aside the sentence imposed below and resentence the applicant on the basis set out later in these reasons. We would dismiss Ground 2 and it is not necessary for this Court to consider Ground 1. The circumstances of the offending 6 In relation to Count 1 the applicant touched the complainant DP, who was aged 13 at the time on the thigh. At the time the applicant was in a casual relationship with DP’s mother. The applicant, DP and her mother were all sleeping in the same bed. The applicant, while DP’s mother was asleep took the opportunity to indecently assault DP. DP was a student at the primary school where the applicant had worked (“the primary school”) although he was not her teacher. The applicant pleaded guilty to this count. The maximum penalty for this offence is eight years imprisonment. 7 Turning to Count 2, FA, who was born on 3 October 2003, attended the primary school between 2009 to 2016. The applicant had been employed part-time as a relief teacher in 2014. In 2015, the applicant worked as a full-time Year 6 teacher at the primary school. The applicant was not FA’s full-time teacher but did have some relief lessons with her. 8 After the applicant’s employment at the primary school had ended, he engaged in group online communications using Facebook Messenger with students from the primary school, including FA. On 11 December 2015, the applicant and FA separated off into another chat on Facebook Messenger involving just the two of them and the applicant began communicating directly with her via this messaging service. 9 Between 17 December 2015 and 26 December 2015, when FA was aged 12 years, the applicant engaged in a series of communications with FA via Facebook Messenger in which he made sexualised comments and approaches, intending to -- 4 of 12 -- [2025] SASCA 117 The Court 3 make FA amenable to engaging with him in sexualised discussion. For example, the applicant asked about meeting with just FA and another female friend at a beach. The communications included messages in which he stated a desire to “get inappropriate” with FA, asked her what her “wildest fantasy” was and told her of his own sexual interest, writing “Google bdsm knots! This is me!”. He later stated he was trying to “hit on” FA and asked her to “send [him] pics”. Other messages sent were clearly of a sexual nature. In addition, on 18 December 2015, the applicant took part in a video chat of approximately one hour with FA and one of her friends. Although the video was never produced, it was the prosecution case that the applicant spoke to FA by means of a video call and during this call, the applicant talked to FA and her friend about tying knots and using the knots during sex. 10 The sentencing Judge found that at least some of this conversation, and some of the messages sent, were intended to normalise conversations about sex. 11 The applicant was aware that FA had experienced mental health issues, and at least once had considered self-harming behaviour and was using alcohol. The sentencing Judge found that the applicant was “preying on her vulnerabilities to make her feel comfortable in talking to him about sexual matters”. 12 In relation to Count 3, MJ, at the time of the offending, was 11 years of age. The applicant was her primary school teacher in 2015 when she was in Year 6. On or around 30 January 2016, MJ started a group chat on Facebook Messenger which included the applicant and FA. Between 29 January 2016 and 25 February 2016, the applicant sent numerous communications to MJ intending to make her amenable to sexual activity. For example, on one occasion the applicant sent messages referring to being in training, on a muscle building diet and having taken a ‘before’ photograph of himself. He continued to send messages about his goals, including referring to not wanting to send his before picture as it may make them ‘horny’. This elicited a response from MJ, “HAHA send us”. The applicant sent the photograph of his torso unclothed, and then asked them to delete the photograph, saying this was an accident. The applicant then engaged MJ in communications in which she referred to having received pictures of “saggy [dick]” before. The applicant wrote that he was “never saggy”. In later messages he wrote that he would “go you” if he was 12 or 13, and that if she was old enough he would “blow your mind”. He wrote there was a reason girls like older men. 13 The applicant pleaded not guilty to both charges of aggravated communicating to make a child amenable to sexual activity. 14 The maximum penalty for Counts 2 and 3 was 12 years imprisonment each. The personal circumstances of the applicant 15 The applicant was 34 years old at the time of the commission of the offending, and 43 years old at the time of sentence. -- 5 of 12 -- [2025] SASCA 117 The Court 4 16 The applicant’s parents separated shortly after he was born and he was adopted by his step-father. He has no relationship with his biological father. The applicant described a stable and functional childhood and both his mother and step-father remain supportive. His education was interrupted by a change of schools due to bullying. Academically the applicant did well but after contracting glandular fever he lost interest in studying and left school before completing Year 12. After leaving school the applicant worked in a variety of occupations. 17 The applicant has three children, a son aged 24, and two daughters aged 11 and 13. He separated from the mother of his eldest child while working at Australian Maritime Construction. After remarrying the applicant resigned and became a truck driver before enrolling in a combined Bachelor of Education and Science degree which he completed in 2013. 18 It was after obtaining his tertiary degree that the applicant obtained employment as a teacher at the primary school. He was employed part-time in 2014 and full-time in 2015. In 2016 the applicant was employed part-time at another school for a few months before quitting the teaching profession and working as a handyman. In September 2016 he separated from his second wife. He continued to work as a handyman until he was remanded in custody on 10 May 2024. 19 The applicant has maintained a close relationship with his son but since his remand in custody, he has had no contact with his daughters. 20 The applicant was a regular user of cannabis, ecstasy and methamphetamine between the ages of 20 to 27. When teaching the applicant began to abuse alcohol due in part to the stress of the breakdown of his marriage. 21 The applicant has been in a positive and loving relationship since around 2020 and his partner has remained supportive. 22 During sentencing submissions the applicant tendered a psychological report from Dr Lim who reported that the offending occurred within a short three-month window and against the background of a documented history of alcohol abuse and a major depressive disorder. Dr Lim considered that the risk of the applicant sexually reoffending in a similar manner was low. 23 The applicant did not have any relevant criminal history, including during the lengthy period of time between the offending and the present. 24 At the time of sentence, the applicant was being treated for his mental health conditions which he had been prescribed sertraline whilst in custody. 25 The applicant intended to take up the opportunity offered to complete courses and participate in rehabilitation programs within the prison setting once he had been sentenced. -- 6 of 12 -- [2025] SASCA 117 The Court 5 Grounds of Appeal Ground 2 – Double punishment 26 It is convenient to start with this ground. Count 2 related to the complainant FA. As it transpired, FA was present during some of the conduct relating to the complainant MJ in Count 3. 27 The evidence in relation to Count 3, which occurred outside of the dates alleged in Count 2, made up part of the factual basis in relation to Count 2. The applicant submitted that the applicant was doubly punished or at least there was a significant risk that he was. 28 We reject that submission. The reasons of the sentencing Judge are clear. When sentencing the applicant in relation to Count 2 the sentencing Judge made it clear that she only had regard to the evidence pertaining to the charged dates. There was no double punishment. 29 We dismiss Ground 2. Ground 3 – The sentence is manifestly excessive 30 The applicant submitted that the overall sentence imposed was manifestly excessive. The applicant, however, focussed on the notional sentences the sentencing Judge nominated for Counts 2 and 3. The applicant submitted that the notional sentences nominated were excessive and potential signposts indicating error in the approach. The applicant also submitted that the sentencing Judge’s approach to concurrency did not ameliorate the error as the sentence imposed after utilising s 26 of the Sentencing Act remained manifestly excessive. 31 The applicant relied on his personal circumstances. The offending was over a relatively short period of time and ceased without intervention. The applicant submitted that he had no other relevant prior offending and since the offending ceased in early 2016 had sought medical advice to treat his underlying psychological issues. He is now in a stable relationship with a supportive partner. 32 The applicant relied upon sentences imposed in other cases to establish that this sentence was manifestly excessive. The applicant submitted that his offending, whilst serious, was less serious than the offending in other cases that had come before the courts. 33 In particular the applicant relied upon Walsh v The King4 (“Walsh”) and Ackland v The King5 (“Ackland”). 34 The offending in Walsh was far worse than the offending in this matter. Walsh pleaded guilty to 230 charges, 130 of which were charges of non-aggravated communication with a child with the intention of making a child amenable to 4 [2024] SASCA 146. 5 [2025] SASCA 15. -- 7 of 12 -- [2025] SASCA 117 The Court 6 sexual activity contrary to s 63B(3)(b) of the CLCA. In Walsh, the sentencing Judge utilised s 26 of the Sentencing Act and imposed a final sentence of 22 years imprisonment and fixed a non-parole period of 17 years and eight months. For the charges of communication with a child with the intention of making a child amenable to sexual activity the notional sentences varied from 18 months imprisonment to two years and three months imprisonment. 35 The appeal in Walsh against the severity of the sentence of 22 years imprisonment was dismissed. 36 In Ackland, the appellant was a teacher. He was sentenced to a single sentence of imprisonment for 14 years, together with a non-parole period of 11 years, two months and 12 days, for 14 counts of child sex offending against 14 adolescent male children, pursuant to s 26 of the Sentencing Act. 13 of the counts were aggravated communication with the intention of making a child amenable to sexual activity, contrary to s 63B(3)(b) of the CLCA, for which the maximum penalty was imprisonment for 12 years (this has since increased to 15 years). The sentencing Judge fixed notional sentences for the s 63B(3)(b) offending ranging between nine months and two years’ imprisonment. The appeal in Ackland against the severity of his sentence was dismissed. 37 While accepting that no two cases are the same the applicant submitted that the starting point of three years and six months for both Counts 2 and 3 was an error leading to the imposition of the sentence imposed for Counts 2 and 3 being manifestly excessive. 38 The respondent submitted that the offending was objectively serious. The applicant took advantage of the power imbalance created by the teacher/student relationship and the age difference. The applicant breached his professional obligations, the victim’s trust and the trust that parents and the community place in teachers. The offending had a profound effect on the victims of Counts 2 and 3 established by their victim impact statements. 39 The respondent submitted that the offending continued over a period of approximately six weeks and was not therefore spontaneous; the applicant had the opportunity to reflect on his offending. The applicant pleaded not guilty to the offending in relation to Counts 2 and 3 and the sentencing Judge described his evidence as “disingenuous and breathtakingly self-focussed”. 40 While the respondent submitted, correctly, that it was the sentence imposed for all of the offending that had to be considered, it accepted that consideration of the nominated notional penalties could assist the Court by providing insight into the current sentencing practice for this type of offending. Discussion 41 The principles in relation to an appeal alleging a sentence is manifestly excessive are well established. -- 8 of 12 -- [2025] SASCA 117 The Court 7 42 As the Court said in Hackett v The Queen (“Hackett”):6 The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion. (Footnotes omitted) 43 No specific error is alleged. The applicant alleges an outcome error. Ultimately, manifest excess is a conclusion which may not permit of lengthy exposition.7 44 In relation to the question of comparative sentences, the Court in Hackett observed:8 In relation to the Sentencing Judge’s reference to the decision in Parrott, in seeking consistency, sentencing judges should have regard to what has been done in other cases. Other cases may well establish a range of sentences which have been imposed. However, such cases do not establish that the sentences imposed mark the outer bounds of the permissible discretion. That is, a mere history of sentences that have been imposed for an offence, while identifying a range that has been imposed, does not necessarily establish that this is the correct range, or that its limits are correct. Consistency in sentencing means consistency in the application of relevant legal principles, not numerical equivalence. Of course, Parrott’s case by itself, does not establish a range. However, a sentencing judge ought to have regard to comparable cases unless there is a compelling reason not to do so such as if the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant. A case such as Parrott can be used as a yardstick against which to examine a proposed sentence. (Footnotes omitted) 45 Although not dealing with notional sentences, the majority in Cuong v The Queen observed:9 Insofar as any starting point is relevant to assessing the appropriateness of a sentence structured in this way, that is, as a ‘critical step’ in arriving at the ultimate sentence, in our 6 [2021] SASCA 32 at [8] (Kelly P, Lovell and Livesey JJA). 7 Ndreka v The Queen [2021] SASCA 11 at [28] (Doyle JA). 8 Hackett v The Queen [2021] SASCA 32 at [26] (Kelly P, Lovell and Livesey JJA). 9 Cuong v The Queen [2021] SASCA 89 at [7] (Lovell and Bleby JJA). -- 9 of 12 -- [2025] SASCA 117 The Court 8 view the relevant starting points in this case are the separate starting points imposed in respect of each offence. These provide the points of comparison contemplated by the Court in Camarinha. 46 As has been said education is a passport for life. The school/student and teacher/student relationships are of great importance in the educational and personal development of children. That is, schools serve a wider purpose than simply providing an academic opportunity for children. Children from an early age learn to navigate relationships with peers and other students both younger and older. Importantly, from the time they start school they have contact with adult teachers who they generally do not know before starting school. Students form relationships, in its widest sense, with their teachers through their time at school. It is not just their class teachers. There are extra-curricular activities such as music, sport and other outdoor activities including camps. Teachers have authority over the students. Self-evidently there is a power imbalance in the relationship. Teachers can have a positively profound effect not only on the development of child’s ability to study but also in developing the child’s ability to navigate the vicissitudes of school and adult life. 47 The circumstance of aggravation alleged in this matter is that the victims were under the age of 14 years. The offending involved a gross breach of trust arising from his position in relation to the three victims. The applicant had been a teacher at the primary school the victims attended. He had taught the victims of Counts 2 and 3 and through his position as a relief teacher formed a relationship with the mother of the victim of Count 1, thus allowing him access. It is through his role as a teacher that he gained the opportunity to engage in his offending. The applicant breached his professional obligations, the victims’ trust and the trust that parents and the community place in teachers by his offending. The vulnerability of children of school age to abuse by a teacher is manifest. Abuse by a teacher of their position of authority can have a profoundly negative effect on a child’s development both academically and socially. The victim impact statements of the victims of Counts 2 and 3 demonstrate the effect the applicant’s behaviour had on their development. The applicant’s conduct in relation to Counts 2 and 3 was an egregious breach of his position of trust. 48 That being said, there are factors in favour of the applicant. The offending was not protracted and ceased without intervention from any person in authority. There is no suggestion that the applicant has offended since early 2016 and he is currently in a stable and supportive relationship which continues despite his incarceration. 49 It was accepted on appeal that this Court has not had to consider the sentencing standard for offending of this type. The cases to which the applicant referred, Walsh and Ackland, were undoubtedly cases where the offending was far more serious compared to that of the applicant. The notional sentences nominated in those cases are significantly lower than the notional sentences nominated here. However, care should be taken when assessing those notional sentences as in both -- 10 of 12 -- [2025] SASCA 117 The Court 9 cases, due to the number of offences that had to be dealt with, both sentencing Judges used s 26 of the Sentencing Act when imposing one sentence. On those appeals, the Court of Appeal only had to consider the final sentence and whether the sentencing Judge had properly considered the questions of partial concurrency and totality. That is the Court of Appeal in both cases was not required to consider whether the individual nominated sentences were within the appropriate range or not. That said the consistency of the nominated notional sentences between the two cases gives this Court guidance on the current sentencing approach for this type of offending in the District Court. 50 As stated in Hackett sentences imposed in other cases while identifying a potential range do not establish that the range or its limits are correct.10 However, the notional sentences imposed do provide some assistance when considering whether the notional sentences nominated in relation to Count 2 and 3 were within the available range. This Court should not ignore such notional sentences. 51 In our view, taking into account the objective features of the offending, the personal circumstances of the applicant and having regard to the notional sentences nominated in other cases, the notional sentences nominated by the sentencing Judge were manifestly excessive. That of course does not necessarily make the final sentence manifestly excessive. However, given the timing of the offences there was scope for partial concurrency between Counts 2 and 3. The sentencing Judge’s approach to concurrency was not in error but did not sufficiently ameliorate the excessive nominated sentences. The final sentence imposed for Counts 2 and 3 was manifestly excessive. 52 We would allow the appeal on this ground. We would set aside the sentence of six years, five months, and four days imprisonment. Resentence 53 Taking into account the serious nature of the offending and the personal circumstances of the applicant, we would on Count 1 impose the same sentence as the sentencing Judge. After allowing for a reduction of 5% for his guilty plea we would impose a sentence of one year, five months and four days. 54 In relation to Count 2, we would nominate a notional sentence of two years and six months. In relation to Count 3, we would nominate a notional sentence of two years and six months. We would make the sentences partially concurrent. Using s 26 of the Sentencing Act, we would impose one sentence in relation to Counts 2 and 3 of four years imprisonment. 55 The sentence of four years imprisonment is to commence at the expiration of the sentence imposed in relation to Count 1. 10 Hackett v The Queen [2021] SASCA 32 at [26] (Kelly P, Lovell and Livesey JJA). -- 11 of 12 -- [2025] SASCA 117 The Court 10 56 That leaves a final sentence of five years, five months and four days. The applicant is to be sentenced as a serious repeat offender. We fix a non-parole period of 80% of the final sentence namely four years, four months and four days. 57 Both the head sentence and non-parole period are to commence from when the applicant was taken into custody, namely 10 May 2024. -- 12 of 12 --