THE KING v CRAIG DAVID BRADLEY [2024] SASCA 56

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE SOULIO) DCCRM-21-49 Appellant: THE KING Counsel: MR D PETRACCARO SC WITH MR W SCOBIE - Solicitor: THE DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: CRAIG DAVID BRADLEY Counsel: MS J POWELL - Solicitor: TIM CLARKE & CO LAWYERS Hearing Date/s: 16/11/2023 File No/s: SCCRM-23-023423 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. R v BRADLEY [2024] SASCA 56 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David) 9 May 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE The respondent sexually abused a 16-year-old female, Ms L, and then approximately 20 years later, sexually abused a 15-year-old male, Mr A. The respondent pleaded guilty to two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). For the offending against Ms L, the respondent was sentenced to one year, 10 months and 25 days imprisonment. For the offending against Mr A, the respondent was sentenced to five years and three months imprisonment. The sentences were to be served cumulatively, with a total sentence of seven years, one month and 25 days imposed, with a fixed non-parole period of five years, eight months and 20 days. The appellant seeks permission to appeal on the basis the sentences imposed for each count are manifestly inadequate. Held, per the Court, refusing permission to appeal in relation to the offending against Mr A: 1. The sentence is not manifestly inadequate. -- 1 of 16 -- Held, per the Court, granting permission to appeal in relation to the offending against Ms L, allowing the appeal and resentencing the respondent: 1. The sentence imposed in the District Court of one year, 10 months and 25 days is set aside. 2. The respondent is resentenced to six years, two months and four days imprisonment. 3. The sentences for the offending against Ms L and Mr A be served cumulatively. The total sentence imposed is 11 years, five months and four days imprisonment. The fixed non-parole period is nine years, one month and 22 days. The sentence and non-parole period are to be backdated to 31 January 2023. Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023 (SA); Sentencing Act 2017 (SA) s 68(1), referred to. Hili v The Queen (2010) 242 CLR 520; R v Alpass (1993) 72 A Crim R 561; R v Amos (a pseudonym) [2021] SASCA 126; R v Buttigieg (2020) 352 FLR 170; R v D (1997) 69 SASR 413; R v Friesen [2020] 1 SCR 424; R v Kelly [2023] SASCA 22; R v King [2009] NSWCCA 117; R v Lian [2023] SASCA 122; R v McIntyre (2020) 138 SASR 17; R v MJJ (2013) 117 SASR 81; R v Stain [2021] SASCA 70; R v Yaroslavceff [2022] SASCA 123; Warner v The King [2022] SASCA 142, considered. -- 2 of 16 -- R v BRADLEY [2024] SASCA 56 Court of Appeal – Criminal: Lovell, Bleby and David JJA 1 THE COURT: The respondent admitted to sexually abusing Ms L, a 16-year-old female, between October 1998 and October 1999. At the time of the offending, the respondent was aged 28 to 29 years old. The respondent further admitted that, approximately 20 years later between June 2019 and May 2020, he sexually abused Mr A, a male aged between 15 and 16 years old. 2 The respondent pleaded guilty to two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”).1 3 For the offending against Ms L, the sentencing Judge imposed a sentence of two years imprisonment, reduced on account of the respondent’s guilty plea to one year, 10 months and 25 days. For the offending against Mr A, the sentencing Judge imposed a sentence of seven years imprisonment, reduced on account of the respondent’s guilty plea to five years and three months. The sentences were to be served cumulatively, with the total sentence imposed being seven years, one month and 25 days. A non-parole period of five years, eight months and 20 days was fixed. 4 The Director of Public Prosecutions (“the appellant”) seeks permission to appeal on the basis the sentences are manifestly inadequate. Factual basis Offending against Ms L 5 The offending against Ms L occurred between 31 October 1998 and 31 October 1999. The respondent and Ms L met through their involvement at a tennis club when Ms L was 15 years old and the respondent was 28 years old. 6 The respondent had several responsibilities at the tennis club. He was captain of the club and a member of the committee. His role included organising training sessions and social events, and was involved in team selection. 7 Ms L was a member of the tennis club and had been for approximately seven years, eventually progressing to the senior league. Ms L would attend the tennis club during the week for training and also for matches on Saturdays. 8 The first physical encounter between the pair occurred in November 1998. Ms L was celebrating her 16th birthday and was drinking with friends in the 1 Prior to the commencement of the Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023 (SA). -- 3 of 16 -- [2024] SASCA 56 The Court 2 upstairs bar area of the tennis club. The respondent, who was also at the bar, spoke to Ms L and eventually that evening they kissed. 9 Following this initial encounter, the respondent paid more attention to Ms L, and would buy her drinks, ice cream and sweets. Ms L became infatuated with the respondent because of the attention he was giving her. They exchanged phone numbers and spoke two to three times a week; the respondent encouraged her to keep these conversations a secret. 10 In early January 1999, Ms L attended the respondent’s home, and they engaged in sexual intercourse. From this point onwards, the pair engaged in sexual intercourse two to three times a week. They would have sexual intercourse at the respondent’s home, in the bar area of the tennis club, and in the respondent’s van. The sexual acts comprised of fellatio, cunnilingus, and penile-vaginal intercourse. Ms L said that she and the respondent engaged in sexual intercourse on hundreds of occasions during the relevant period. 11 Ms L reached the age of consent at the end of October 1999. Their relationship ended in April 2000. 12 Ms L in her victim impact statement outlined the impact the respondent’s abuse of power and exploitation of his popular standing within the tennis club has had on her life. She detailed the respondent’s grooming behaviour, which exploited her social vulnerability, and the long-lasting shame she has encountered. Further, she outlined the negative impact it had on her schooling, her future prospects, and her relationships with family and friends. Ms L stated she suffered depression and anxiety, had difficulty sleeping, and suffered panic attacks during the criminal justice process. Offending against Mr A 13 The offending against Mr A occurred between 30 June 2019 and 1 July 2020, when Mr A was 15 years old and the respondent was 47 years old. They met on the social media application “Grindr”. Mr A initially told the respondent that he was 18 years old. When Mr A later informed the respondent that he was only 15 years old, the respondent said that he “didn’t mind”. 14 The respondent and Mr A began communicating via text message, which included exchanging sexually explicit images. After a few weeks, they arranged to meet in person, and subsequently met on four different occasions. 15 The first meeting occurred prior to Mr A’s 16th birthday. The respondent picked Mr A up at a park at night and drove him to his house. They engaged in mutual fellatio. 16 They continued communicating on the “Grindr” application, and approximately a month after their initial meeting, they met again in similar circumstances, performing mutual acts of fellatio. -- 4 of 16 -- [2024] SASCA 56 The Court 3 17 Around December 2019 or January 2020, they arranged to meet again. The respondent told Mr A that they could not go back to his house as his house mate was home. Mr A suggested that they could “have fun” in the respondent’s car. They drove to a side street near Mr A’s house and performed mutual acts of fellatio. 18 Approximately a month after the third incident, Mr A and the respondent arranged to meet a fourth time in similar circumstances to the first and second meetings. They performed mutual acts of fellatio. 19 Mr A and the respondent engaged once in penile-anal intercourse. 20 The communication between the respondent and Mr A only stopped in late April 2020 when Mr A’s mother became aware of the relationship and took possession of Mr A’s phone. 21 Mr A declined to provide a victim impact statement. Personal circumstances of the respondent 22 At the time of sentencing, the respondent was 52 years old. Apart from this offending, the respondent has no criminal history. The sentencing Judge considered the respondent a first-time offender, albeit having committed two serious offences separated by the period already described. The respondent had a good employment history and a positive relationship with his mother and sisters. His parents remained married until his father was diagnosed with Hodgkin’s Lymphoma when the respondent was 20 years of age and passed away three years later. The respondent had a normal childhood and attended school until year 12. 23 The respondent enrolled in a university degree, however, withdrew after one semester due to suffering depression. After his secondary education, the respondent travelled for a year in Europe. 24 The sentencing Judge summarised the circumstances of the respondent as detailed in Dr Heinrich’s (a clinical psychologist) report. Up until the respondent’s mid-30’s he was only in relationships with women. Thereafter, there was a period where he dated men and women. The respondent now identifies only as homosexual. He has been in two serious relationships in the past, one with a man and another with a woman. 25 The respondent has suffered in recent years several medical issues including a benign tumour, a hip replacement caused by necrosis, and skin cancer. Further, the respondent has suffered from depression since 2005 and suicidal ideation since being charged with the offences. 26 Dr Heinrich opined that the respondent did not meet the criteria for a paedophilic disorder and considered that the combination of depression and -- 5 of 16 -- [2024] SASCA 56 The Court 4 anxiety, with the respondent’s longing for a serious relationship, led him to engage in inappropriate sexual relationships. 27 Dr Heinrich considered the most significant risk factor for re-offending was the respondent’s mental health issues and lack of a long-term stable relationship. However, she noted that the respondent was willing and motivated to obtain treatment and had supportive family and friends. Dr Heinrich considered that the respondent would benefit from the sexual offender treatment programs and treatment by a psychologist. 28 Numerous letters of support from family and friends were tendered and the respondent provided a letter of apology. Sentence for the offending against Ms L 29 In relation to the offending against Ms L, the sentencing Judge had regard to the age difference and their respective positions within the tennis club. While the sentencing Judge noted the respondent’s role within the tennis club, he did not consider that the respondent was in a position of authority as defined in the CLCA. Further, the sentencing Judge observed that the sentencing standards referred to in R v D2 did not apply directly. 30 The sentencing Judge imposed a sentence of two years imprisonment, discounted by five per cent for the respondent’s guilty plea to one year, 10 months and 25 days. Sentence for the offending against Mr A 31 The sentencing Judge noted the offending against Mr A occurred approximately 20 years after the offending against Ms L when the respondent was considerably more mature and the age difference far greater. 32 The sentencing Judge imposed a sentence of seven years imprisonment, discounted by 25 per cent for the respondent’s guilty plea to five years and three months. 33 The sentencing Judge ordered that the sentences be served cumulatively, making the total sentence of imprisonment seven years, one month and 25 days. There was no adjustment for totality. The respondent was sentenced as a serious repeat offender, and therefore the non-parole period was required to be at least four-fifths of that sentence. A non-parole period of five years, eight months and 20 days was fixed. 2 (1997) 69 SASR 413. -- 6 of 16 -- [2024] SASCA 56 The Court 5 Grounds of appeal 34 Although there is only one ground of appeal, it was contended by the appellant that the individual sentences imposed for the offending against Ms L and Mr A are manifestly inadequate. Appellant’s submissions 35 The appellant accepted that no process error in the sentencing remarks could be identified. However, the appellant submitted that the sentences imposed failed to adequately reflect the objective seriousness of the offending. 36 The appellant submitted the objective seriousness of the respondent’s offending was demonstrated by the following: • Both sets of offending involved exploiting a power imbalance and reflected a course of conduct that involved the sexual abuse of a child which lasted over a period of at least some months. • The respondent knew the age of each victim. The respondent did not contend this. • The grooming behaviour of the respondent normalised increasingly sexualised behaviours between a teenager and an adult, culminating in unlawful sexual intercourse. • The risk to the community and demonstrated lack of insight into his behaviour, which engaged criminogenic factors, reflected by approximately 20 years having elapsed between offences, the respondent sexually abused a child over a period of some months. 37 The appellant submitted that it is well established that sexual offending against children is inherently serious, requiring a strong response to deter and provide adequate protection of the community.3 Deterrence for these type of offences is required due to the significant and long lasting psychological, emotional, and sometimes physical harm, caused to victims.4 Sentences must recognise harm and “weigh these harms in a manner that reflects society’s deepening and evolving understanding of their severity”.5 The seriousness of the offences must be seen in the context of their inherent wrongfulness, and the potential and actual harm caused.6 Understanding the long-term consequences of child sexual abuse is necessary to appreciate the significance of the acts and 3 R v McIntyre (2020) 138 SASR 17 at [45] (Doyle J, with Stanley and Hughes JJ agreeing); R v Amos (a pseudonym) [2021] SASCA 126 at [36]; R v MJJ (2013) 117 SASR 81. 4 R v MJJ (2013) 117 SASR 81 at [84] (Kourakis CJ); R v McIntyre (2020) 138 SASR 17 at [58] (Doyle J, with Stanley and Hughes JJ agreeing). 5 R v Friesen [2020] 1 SCR 424 at [74]. 6 R v Friesen [2020] 1 SCR 424 at [76]. -- 7 of 16 -- [2024] SASCA 56 The Court 6 objective gravity of the offending.7 As observed by Kourakis CJ in R v MJJ, these offences come at a great loss as well to the victims’ families and society at large.8 38 Parliament’s successive increases to maximum penalties for offences involving sexual abuse reflect the intention that the courts impose strongly deterrent sentences. The duty in s 68 of the Sentencing Act 2017 (SA) is not confined to an application of the standard first discussed in R v D,9 encompassing all “sentencing practices, principles and guidelines” applicable to child sexual offences.10 39 The appellant also relied on R v Friesen in regard to the harm suffered by adolescent girls, where the Court stated:11 … courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls … In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy. (citations omitted) 40 The appellant also noted, as observed by Doyle CJ in R v D, that the fact a child is closer to the age of consent is not a factor capable of reducing the appropriate penalty to be imposed.12 41 The appellant submitted that adults have the obligation to protect children, including where a child attempts to initiate or engage in sexual activity; this is particularly so where the adult is in a position of authority and where the age disparity is significant. The respondent failed his responsibilities as the adult in the interactions with both victims. 42 Turning to Ms L, the appellant submitted the deliberate manipulation and cultivated deception involved in the offending, where her family relationships and friendships were undermined, along with the adverse impacts the offending has had on her, reflect the seriousness of offending against adolescents. 43 There was a 13-year age gap between the respondent and Ms L. The appellant submitted the respondent could not be categorised as immature, given he was 28 years old at the time; he was substantially older and more experienced than Ms L. Further, the exploitation of the age disparity was exacerbated by the respondent’s 7 See R v Alpass (1993) 72 A Crim R 561, 565; R v King [2009] NSWCCA 117 at [40]-[41]. See also R v Friesen [2020] 1 SCR 424 at [50], [136]. 8 R v MJJ (2013) 117 SASR 81 at [84]. 9 (1997) 69 SASR 413, 423. 10 Sentencing Act 2017 (SA) s 68(1). 11 R v Friesen [2020] 1 SCR 424 at [136]. 12 R v D (1997) 69 SASR 413, 423-424. -- 8 of 16 -- [2024] SASCA 56 The Court 7 position at the tennis club. The respondent at the time recognised the need to keep the offending against Ms L a secret and chose to continue with the offending. 44 The appellant submitted the delay in being sentenced for the offending against Ms L was not capable of mitigating the offending, being recognised that victims of child sexual abuse are often reluctant to come forward for many years.13 45 In relation to the offending against Mr A, the appellant submitted that, given that it occurred approximately 20 years after his abuse of Ms L, this demonstrated the heightened need for general and personal deterrence when sentencing the respondent. The respondent knew early in the relationship of Mr A’s age but continued to have a sexual relationship with him. The respondent was significantly older than Mr A. 46 The appellant submitted that the sentences were so low as to demonstrate an outcome error in the sentencing process. Each sentence imposed was unreasonable or unjust.14 While the appellant accepted that strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate, that hurdle was met. The sentences were so low that the “rare and exceptional test” was met. Appellate intervention was required. Respondent’s submissions 47 The respondent submitted that both sentences were within the range of appropriate sentences for this type of offending; the sentences could not be described as manifestly inadequate. While the respondent accepted that all sexual offending against children involves the exploitation of a power imbalance and accounts for the objective seriousness in all cases, it was submitted that the sentencing Judge clearly had regard to the objective seriousness of the offending. 48 In relation to the question of grooming, the respondent did not accept that he engaged in such behaviour. The sentencing Judge did not sentence on the basis that the respondent deliberately engaged in predatory behaviour to make the victims amenable to sexual activity, nor was the sentencing Judge urged to do so by the prosecutor. The respondent submitted the sentencing Judge’s departure from the sentencing standards in R v D was appropriate, as there was no evidence before the sentencing Judge that the respondent deliberately manipulated or deceived Ms L into entering a relationship with him. That is, the offending did not involve grooming, predation, nor was it found that the respondent had a sexual interest in children. 49 Although the respondent held a position at the tennis club, he did not use his position to develop Ms L’s trust, or deliberately cultivate a non-sexual relationship to later abuse her trust or vulnerability. The respondent submitted before the sentencing Judge that he considered he was in a committed and loving relationship, 13 R v Stain [2021] SASCA 70 at [46]. 14 R v Buttigieg (2020) 352 FLR 170; R v Yaroslavceff [2022] SASCA 123; R v Kelly [2023] SASCA 22. -- 9 of 16 -- [2024] SASCA 56 The Court 8 and believed Ms L felt the same. This submission was not contradicted by the prosecution. 50 The respondent submitted there was no evidence before the sentencing Judge that the respondent wanted to keep the sexual relationship a secret with Ms L, other than to Ms L’s disapproving parents. The respondent submitted that the relationship was well known within the tennis club, and to Ms L’s family and friends. 51 The respondent submitted that neither of the sentences could be described as manifestly inadequate. In any event, the respondent submitted that if the sentences were manifestly inadequate, the appellant had not established that public policy reasons were such as to meet the “rare and exceptional” test. Permission to appeal should be refused. Discussion 52 The principles relating to a prosecution appeal are well established. Permission should only be granted with respect to prosecution appeals against sentence in cases that are “rare and exceptional”. 53 Prosecution appeals involve a two-step process. First, an appellate court determines whether error has been established, as error must be identified before an appellate court can interfere. A specific error may be identified if a sentencing judge has acted upon a wrong principle, mistaken the facts, failed to consider a material consideration, or allowed irrelevant matters to impact the decision. Alternatively, where a specific error cannot be identified, the sentence imposed can be so manifestly excessive or inadequate that the only inference to be drawn is that there was a failure to properly exercise the sentencing discretion. 54 Manifest inadequacy is a conclusion.15 In determining whether a sentence is or is not plainly inadequate, an appellate court must determine whether the sentence imposed fell outside the permissible range such that it must be plainly inadequate. A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.16 55 If no error is established, then permission to appeal would be refused. If error has been established, then the offender has not been sentenced according to law. Before resentencing, the court must consider whether permission to appeal should be granted. An appellate court’s determination that a sentence is manifestly inadequate does not, of itself, justify permission to appeal. The question of whether 15 Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 16 R v Buttigieg (2020) 352 FLR 170; R v Yaroslavceff [2022] SASCA 123; R v Kelly [2023] SASCA 22. -- 10 of 16 -- [2024] SASCA 56 The Court 9 the prosecution should be granted permission to appeal involves issues ranging beyond those involved in the merits of the appeal. 56 A prosecution appeal against the adequacy of a sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied.17 57 Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The prosecution must persuade the court that such strong reasons of public policy exist which demand permission to appeal be granted, despite the public interest in not twice vexing the respondent.18 That is, the question of double jeopardy must be considered. 58 The principle of double jeopardy encompasses the element of distress and anxiety which a respondent suffers from being exposed to the possibility of a more severe sentence, having already been subjected to the State’s coercive powers. 59 In R v Lian Kourakis CJ observed:19 In R v Kelly, Lovell JA explained the test for the grant of permission for a prosecution appeal against sentence as follows: Whether to grant the prosecution permission to appeal against a sentence involves a balancing exercise. The prosecution will be granted permission to appeal if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’. However, as King CJ in R v Drewett observed, even great disparity between the sentence imposed and the sentence which the appellate court would regard as appropriate, does not of itself justify allowing a prosecution appeal. The principle of double jeopardy means that both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. To put that another way, the court must be persuaded that the public interest in maintaining appropriate sentencing standards justifies appellate intervention, notwithstanding the hardship to a defendant associated with the principle of double jeopardy; namely, being twice vexed by the repeated exercise of the State’s coercive power. It is during this balancing exercise that consideration must be given to whether it is ‘a rare and exceptional’ case. (citations omitted) 60 There is a stark difference in the length of the sentences imposed. While there are factual differences between the offending, such factual differences cannot, in 17 R v Buttigieg (2020) 352 FLR 170. 18 R v Buttigieg (2020) 352 FLR 170. 19 R v Lian [2023] SASCA 122 at [118]. -- 11 of 16 -- [2024] SASCA 56 The Court 10 our view, account for disparity in the sentences imposed. For example, Mr A was younger than Ms L at the time of the offending. However, the number of unlawful sexual acts between Ms L and the respondent was substantially greater than between Mr A and the respondent. 61 The sentencing guidelines for this type of offending were established in R v D.20 The application of the sentencing standard in R v D was explained by Kourakis CJ in Warner v The King as follows:21 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. 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. 62 This was more recently observed in R v Lian, a judgment that was delivered by this Court after the respondent was sentenced, where Kourakis CJ (with Lovell and Doyle JJA agreeing) stated:22 The standard in R v D was legislatively applied by s 68(1) of the Sentencing Act to all offences of that kind whether committed before or after the decision in that case. Section 68 now provides, more generally, that sexual offenders are to be sentenced in accordance with the standards applicable at the time of sentencing. The sentencing standard in R v D applies directly to offending, including unlawful sexual intercourse, with a child committed by a person in a position of trust. Holding a position of trust is an aggravating circumstance. Sentences for sexual offending against children attended by an aggravating circumstance of that kind cannot be any more severe than is proportionate to the gravity of the aggravating circumstance. It follows that the establishment of a standard for sexual offences against children, when the offence is 20 (1997) 69 SASR 413, 423-424. 21 Warner v The King [2022] SASCA 142 at [19]-[20]. 22 R v Lian [2023] SASCA 122 at [97]-[103], [105], [107]. -- 12 of 16 -- [2024] SASCA 56 The Court 11 attended by that aggravating circumstance, necessarily effected an increase in the appropriate range for all sexual offending by adults against children. Moreover, it has long been accepted that sentences for sexual offending against children must be calculated to protect children, who are by reason of their age, naïve and vulnerable, from the predations of adults. Children are easily influenced and have only a limited understanding of the nature, consequences and, in particular, risks of sexual relationships with adults. … In R v Dyett, this Court observed that some sexual offenders occupy positions which may be described as ‘an informal position of trust’ because of the influence they exercise over their victims. There are not always clear, bright lines delineating formal positions of trust from informal ones, or from the offending of other adults who opportunistically take advantage of the naivete of youth. The increased severity of the guideline given in R v D was calculated to protect children from the long-term suffering caused by the sexual offending against them by adults. That must remain the focus of sentencing all such offenders. The nature and degree of the power imbalance between them, the upper end of which is the subject of the standard set out in R v D, will affect the relative severity of the sentences for sexual offending against children generally. In cases in which the offender has been entrusted with the care of his victim general and personal deterrence and the importance of denunciation will weigh strongly against any mitigation of the standard. Conversely, where that aggravating circumstance is not present, and there is only slight disparity in chronological and emotional maturity, the offender’s previous good character and prospect for rehabilitation may allow more room for leniency. However, there cannot be two distinct and unrelated categories of sentences for sexual offending against children; one for offenders in formal or informal positions of trust, and another for offenders who do not occupy these positions. To ensure coherence in sentencing, and in order not to undermine the protection of children against all adult predators, a proportionate relationship between the categories must be maintained. Sentences for all sexual offending against children will necessarily be fixed at a point along a continuum of sentences calibrated to reflect the particular offences, and the applicable maximum penalty, and the aggravating and mitigating circumstances of each case. … On the other hand, the Judge’s finding that Mr Lian did not occupy a position of trust is correct. That aggravating circumstance is absent here. However, for the reasons I have given, its absence does not mean that the standard established in R v D can be ignored. … The sentencing standard in R v D, and the need for general deterrence in order to protect children, is not limited to paedophiles. It is not limited to offenders who have developed settled criminal habits. It applies to all persons who commit sexual offences against children. (citations omitted and emphasis added) -- 13 of 16 -- [2024] SASCA 56 The Court 12 63 Turning to the charge relating to Ms L, the appellant did not allege that the sentencing Judge made a specific error. However, the appellant submitted that the sentencing Judge clearly failed to consider properly the principles established in R v D. 64 Although the respondent’s position at the tennis club in relation to Ms L is not a legislatively defined position of authority, which the sentencing Judge correctly observed, the absence of this aggravating feature does not mean the standard in R v D can be ignored. 65 The respondent submitted before the sentencing Judge that he considered he was in a committed and loving relationship, and believed Ms L felt the same. The sentencing Judge did not specifically refer to the relationship as a “loving one”, but we consider it likely that he was influenced by the nature of the relationship between the respondent and Ms L. That is not a mitigatory factor. 66 Further, there was here evidence of grooming. While the respondent was not in a defined position of authority in relation to Ms L, his position in the club and his admitted behaviour towards Ms L demonstrates that he exploited his position and the age difference. The respondent gave Ms L an increasing amount of attention which included buying her drinks, ice creams and sweets before their contact became sexual. The conduct could only be described as grooming. The respondent’s position and duties at the tennis club increased the power imbalance between himself and Ms L that already existed due to the age disparity. We do not accept the community’s knowledge of the respondent and Ms L’s involvement together decreases the severity of the conduct, nor does whether Ms L and the respondent regarded it as a “boyfriend/girlfriend relationship”. It is expected that adults are to protect children and adolescents who seek to explore their own emerging sexuality by ensuring no sexual activity occurs. 67 The sentencing Judge did use the term “relationship” cautiously. In R v Lian, the following observations were made about the characterisation of the relationship being a “loving” one:23 The relationship was the product of the criminal abuse of a child by an adult from its inception to its termination. It is difficult to see how the descriptor ‘loving’ can mean anything more than that RM did not, ultimately, object to intercourse. In that sense, it illustrates the very reason for the need to protect children explained by King CJ in R v Williams. The term ‘loving’ is very subjective and contestable even in consensual adult relationships. It can have little or no sentencing significance in a case of sexual offending against children. Its use glosses over the very criminality of the offence of which the offender has been convicted. It should be avoided. 68 Ms L’s victim impact statement eloquently outlines the negative effect the relationship had on her. 23 R v Lian [2023] SASCA 122 at [112] (Kourakis CJ, with Lovell and Doyle JJA agreeing). -- 14 of 16 -- [2024] SASCA 56 The Court 13 69 The sentence imposed by the sentencing Judge in relation to the offending against Ms L does not reflect the importance of general and personal deterrence, nor the importance of protecting children from predatory adult behaviour. 70 We are satisfied that there is a significant disparity between the sentence imposed and what was necessary to achieve through the sentencing exercise. There must have been some misapplication of principle, even though the error is not apparent from the remarks. The notional starting point of two years imprisonment is outside, considerably, the range of appropriate sentences. The sentence imposed is manifestly inadequate. 71 In relation to the offending against Mr A, there was no suggestion that there was a “loving relationship” between the respondent and Mr A. Their contact was transactional only. 72 However, the fact that their sexual encounters were based on mutual gratification does not mitigate the offending, given the substantial age gap and corresponding power imbalance between the respondent and Mr A. 73 That the offending against Mr A occurred approximately 20 years after the offending against Ms L demonstrates the respondent’s willingness to sexually abuse adolescent children. The respondent also showed no concern when he found out Mr A was 15 years of age. The offending took place over several months. The respondent had the opportunity to reflect on his actions and the age disparity, but he continued his predatory behaviour. The respondent continued to communicate to Mr A in a way that made him amenable to sexual activity, with the offending only stopping due to Mr A’s mother’s intervention. 74 Although we consider this sentence to be on the lower end, when considering the sentencing principles and standard established in R v D, we do not consider it as manifestly inadequate. 75 We turn to the question of whether the appellant should be granted permission to appeal in relation to the sentence imposed for the offending against Ms L. 76 The sentence imposed was erroneously lenient and cannot stand. It is necessary to maintain proper sentencing standards for offences of this nature, which are informed by the need to protect children from exploitation. Intervention is required to maintain appropriate sentencing standards and ensure public confidence in the administration of justice. The length of the sentence amounted to an extreme departure from the appropriate standard, having regard to the seriousness of the offending. Thus, strong considerations of public policy require this Court’s intervention, even though it will come at the cost of the respondent being twice vexed by the coercive power of the State. 77 Permission to appeal must be granted. -- 15 of 16 -- [2024] SASCA 56 The Court 14 Resentence 78 We would set aside the sentence imposed in relation to the offending against Ms L. We have had regard to the facts and the matters personal to the respondent as set out earlier in these reasons. But for the respondent’s plea of guilty, we would have sentenced him to imprisonment for six years and six months. To allow for his plea of guilty, we would impose a sentence of six years, two months and four days. 79 Like the sentencing Judge, we would order that the respective sentences for the offending against Ms L and Mr A be served cumulatively. 80 The total sentence imposed is 11 years, five months and four days imprisonment. We fix a non-parole period of nine years, one month and 22 days. 81 We have considered the question of totality and find that the sentence imposed is proportionate to the gravity of the offending. Order 82 Permission to appeal granted and the sentence imposed for the offending against Ms L of one year, 10 months and 25 days is set aside. 83 For the offending against Ms L, the respondent is resentenced to six years, two months and four days imprisonment. 84 The total sentence imposed is 11 years, five months and four days imprisonment. The fixed non-parole period is nine years, one month and 22 days. 85 The sentence and non-parole period are to be backdated to 31 January 2023 when the respondent was remanded in custody. -- 16 of 16 --