ADAM (A PSEUDONYM) v THE KING [2024] SASCA 149

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE KUDELKA) DCCRM-22-831 Appellant: ADAM (A PSEUDONYM) Counsel: MR J POWELL - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: THE KING Counsel: MS R RICHARDSON WITH MS A O'SULLIVAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 14/03/2024 File No/s: SCCRM-23-036347 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. ADAM (A PSEUDONYM) v THE KING [2024] SASCA 149 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 19 December 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD Application for permission to appeal against sentence referred to the Court of Appeal for argument as on appeal. The applicant pleaded guilty to maintaining an unlaw sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The offending commenced when the complainant was 16 years and five months, and the appellant was 27 years. The appellant’s offending continued for around 7 months until the complainant turned 17. During the course of the offending, the complainant was impregnated and delivered triplets. The complainant and the appellant had two more children before their relationship came to an end after nine years. The sentencing judge commenced with a sentence of imprisonment of seven years which, following a reduction of five percent for the plea of guilty, resulted in a head sentence of six years, seven months and 25 days. The sentencing judge fixed a non-parole period of three years and eight months. The applicant sought permission to appeal against sentence on the ground that the sentence is manifestly excessive. -- 1 of 25 -- Held (the Court) granting permission to appeal but dismissing the appeal: 1. Whilst the parties were agreed that the sentencing standard in R v D (1997) 69 SASR 413 did not apply directly to the offending, there were features that suggested that it provided guidance. The offending involved the breach of an informal position of trust and the natural authority produced by a significant age disparity between the appellant and the complainant. The appellant’s personal circumstances were otherwise generally favourable. [79]-[81] 2. Although the starting point for sentence of imprisonment for seven years is high, and could have been lower, the sentence as a whole is not manifestly excessive given the lower than normal non-parole period. [96] 3. Recent decisions of the Court of Appeal reviewed, [45]-[47], [59]-[77] and observations made about the features relevant to determining the seriousness of child sexual abuse offending, including under s 50 of the CLCA, [78]. Criminal Law Consolidation Act 1935 (SA) ss 49, 50, 56; Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023 (SA) s 3; Sentencing Act 2017 (SA) ss 3, 9; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 11, referred to. Baxter (A Pseudonym) v The King [2024] SASCA 64; R v Berry [2024] SASCA 116; R v Bradley [2024] SASCA 56; R v Butler (A Pseudonym) [2022] SASCA 112; R v Dyett [2023] SASCA 41; R v Lian [2023] SASCA 122; R v Seymour (A Pseudonym) [2024] SASCA 41, discussed. Barbaro v The Queen (2014) 253 CLR 58; Burgoyne v The King [2024] SASCA 61; Brooker v The King [2024] SASCA 135; Clarkson v The Queen (2011) 32 VR 361; Da Silva v The Queen [2020] SASCFC 66; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Elias v The Queen (2013) 248 CLR 483; Evans v The Queen [2019] SASCFC 145; Glade v The Queen [2020] SASCFC 83; Hackett v The Queen [2021] SASCA 32; Henry v The Queen (2022) 141 SASR 230; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; Mill v The Queen (1988) 166 CLR 59; Musgrave v Western Australia (2021) 289 A Crim R 17; R v Amos [2021] SASCA 126; R v Bahrami (2020) 137 SASR 327; R v Beaumont [2023] SASCA 128; R v Burk (unreported, District Court of South Australia, No DCCRM-22-001999, 18 December 2023) ; R v Cameron (unreported, District Court of South Australia, No DCCRM-22-33, 26 July 2023) ; R v Chesterman (2017) SASCFC 31; R v D (1997) 69 SASR 413; R v Friesen [2020] 1 SCR 424; R v Harris [2023] SASCA 129; R v Howell [2018] SASCFC 12; R v Jackson [2014] SASCFC 101; R v King (1988) 48 SASR 555; R v Long (unreported, District Court of South Australia, No DCCRM-22-007387, 31 March 2023) ; R v MacDermott (unreported, District Court of South Australia, No DCCRM-22-568, 11 August 2022) ; R v McIntyre (2020) 138 SASR 17; R v MJJ; R v CJN (2013) 117 SASR 81; R v Morse (1979) 23 SASR 98; R v Pham (2015) 256 CLR 550; R v Quinn (2012) 114 SASR 354; R v Richardson (unreported, District Court of South Australia, Nos DCCRM-22-508 & 21-1199, 5 September 2022) ; R v Slape (unreported, District Court of South Australia, No DCCRM-21-1288, 10 February 2023) ; R v Stain [2021] SASCA 70; R v V, AJ [2012] SASCFC 10; R v Williams (1990) 53 SASR 253; R v Young (2016) 126 SASR 141; The Queen v B, J [2007] SASC 67; Turnbull (A Pseudonym) v R [2023] SASCA 121; Warner v The King (2022) 142 SASR 275, considered. -- 2 of 25 -- ADAM (A PSEUDONYM) v THE KING [2024] SASCA 149 Court of Appeal – Criminal: Livesey P, Bleby and David JJA THE COURT: Introduction 1 This application for permission to appeal against sentence has been referred for argument as on appeal. The sole proposed ground of appeal is that the sentence imposed in the District Court on 1 September 2023 is manifestly excessive. 2 On 30 June 2023, the appellant pleaded guilty to maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA),1 for which the maximum penalty is life imprisonment. 3 The unlawful sexual relationship commenced when the complainant was 16 years and the appellant was 27 years. Although the offending is particularised as commencing in July 2009, it commenced only after the death of the complainant’s aunt on 26 September 2009, but before 6 November 2009 which was the date the complainant marked as their anniversary. The offending continued for around seven months until the complainant turned 17 on 30 April 2010. 4 However, during the period of the offending, in December 2009 the complainant fell pregnant. She gave birth to triplet girls on 21 July 2010. In the course of their nine-year relationship, which ended in September 2018, the complainant and the appellant had two more children. The relationship broke down amid disputed allegations of family violence and rape.2 The appellant has not seen his five children for nearly four years. The complainant has since married another man and they share a child. 5 By the time of sentence, the complainant was around 30 years and the appellant 41 years. 6 The sentencing judge commenced with a sentence of imprisonment of seven years which, following a reduction of five percent for the plea of guilty made a few months before trial, resulted in a sentence six years, seven months and 25 days. The sentencing judge fixed a non-parole period of three years and eight months. 7 After credit given for two days spent in custody, the appellant was sentenced to six years, seven months and 23 days’ imprisonment, with a non-parole period 1 Now described as the sexual abuse of a child, see s 3 of the Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023 (SA). 2 The rape allegations were the subject of nolle prosequi at the time the guilty plea was entered. -- 3 of 25 -- [2024] SASCA 149 The Court 2 of three years, seven months and 28 days, ordered to commence from 17 August 2023. An intervention order was made without opposition from the appellant. Disposition of the application for permission to appeal 8 The offending in this case was undoubtedly serious. Whilst the sentence is high it is not manifestly excessive. Permission to appeal should be granted and the appeal dismissed. Circumstances of the offending 9 The appellant was on good terms with the complainant’s mother when in 2009 she agreed to provide him with accommodation after he was discharged from hospital following an assault. 10 In around July 2009, the appellant moved into the complainant’s home in Whyalla. Because the home was small, the appellant initially slept in the bedroom of the complainant’s mother. The appellant agreed with the complainant’s mother that her two daughters were “off limits”. 11 By September 2009, the complainant’s older sister had moved back home and the appellant was moved into the complainant’s bedroom. It was expected that he would sleep on a mattress, but he soon commenced sleeping in her bed. 12 In late September 2009 the complainant’s family was devastated by the death of an aunt. The complainant and her family struggled with grief. During this time the complainant and the appellant became close. They went on drives and the appellant taught the complainant to drive. During the course of sentencing submissions, counsel for the appellant explained to the sentencing judge:3 As to his frame of mind at the time he commenced the relationship, … he doesn’t know why, as the adult, he allowed it to happen. He thinks that he was helping her in her grief at the death of her aunt and that was helping him in his grief at his distress at her passing and also his distress at his friend’s traumatic passing. He tells me he can’t explain how he allowed it to happen and he regrets that he did. 13 The reference to the appellant’s friend is a reference to observing his best friend dying in a violent motor-cycle accident in which he was struck by a semi-trailer. The appellant found the experience disturbing and he had trouble with grief and alcohol. 14 The appellant moved with the complainant’s family from Whyalla to Stockport during November 2009. At that stage the complainant’s mother allowed the complainant and the appellant to share a bed. She believed that the relationship was not a sexual one. That changed when the complainant fell pregnant during 3 Appeal book 50, line 18. -- 4 of 25 -- [2024] SASCA 149 The Court 3 December 2009. This caused the complainant significant difficulty amongst a section of her family and friends. 15 The relationship first came to the attention of police in May 2010.4 This was before the triplets were born on 21 July 2010. Police met with the family and the complainant, but as no complaint of offending was disclosed, the matter was “filed”. The matter was reopened in mid-2019, after the relationship came to an end in September 2018.5 16 Although the appellant took some time away from work to assist with the care of the triplets, one of whom has a significant disability, the complainant had the primary care of the children. This was a very significant burden for a girl of 17 years. As the complainant explained in her victim impact statement, she believed that the appellant took advantage of her age, kindness, trusting abilities and naive persona. The complainant explained that this occurred when she should have been growing and finding herself. Instead, she said she was moulded into an obedient, scared, fragile person who was manipulated into thinking she needed to depend on the appellant. The complainant said that the appellant took away a part of her childhood that she will never get back. 17 The complainant explained that she now recognised how unorthodox their relationship was and she now feels disgusted by it. She will ensure her daughters never end up in the situation in which she found herself. 18 It is clear that the immediate consequence of the offending was that the complainant lost the opportunity to continue with her schooling and any prospect of further study. 19 In the course of sentencing submissions, the appellant tendered a booklet of Facebook postings made by the complainant in the period 2011 to 2016, a period when the complainant was aged between 17 or 18 and 23. Counsel for the appellant submitted that the postings demonstrated that the appellant was happy in her relationship with the appellant at the time of the postings. To this the sentencing judge responded that she believed that this submission showed a complete lack of insight into the appellant’s criminal behaviour and “the track that he set for her until she managed to leave the so-called relationship. But you can tender them.” 20 It cannot be doubted that the appellant’s offending was serious. It was aggravated by the appellant breaching the trust of the complainant’s mother and by allowing the complainant to conceive triplets when she was 16 years. Nonetheless, the subsequent course of their relationship was not irrelevant to the appellant’s rehabilitation prospects in a case where he had expressed responsibility and remorse for his wrongdoing. 4 Prosecution Case Statement, AB 29. 5 Prosecution Case Statement, AB 29. -- 5 of 25 -- [2024] SASCA 149 The Court 4 Circumstances of the offender 21 The appellant was born in Victoria, the eldest of three children. The appellant’s sister died from suicide some years before sentence, and the appellant has a younger brother. The appellant’s family moved around Australia, in part because of the work of the appellant’s father as a painter and builder. 22 The appellant’s parents separated when he was 13 years and, initially, he stayed with his mother in Whyalla. When he was 15 years the appellant moved to Victoria to be with his father. After leaving school at 16, he completed an apprenticeship as a painter and decorator in his father’s business. 23 The appellant moved to Whyalla with his then girlfriend to be near his mother. They then married and moved to Darwin, where the father of the appellant’s wife was then living. After the appellant’s marriage broke down, he moved to Queensland where his mother was living. The appellant worked with his mother’s domestic partner as a painter. Later, the appellant again moved back to Whyalla to be near his sick grandmother. 24 As mentioned, the appellant was traumatised by witnessing the death of his best friend and he commenced drinking alcohol heavily. The appellant reduced his drinking after the complainant became pregnant. The appellant sought to support the complainant with mental health issues after the birth of their children. The appellant proposed to the complainant on her eighteenth birthday in 2011, and she accepted. Their marriage was deferred when it was discovered that the complainant was again pregnant. Marriage was again deferred because of difficulties with money. 25 After the triplets were born in 2010, two more children were born in 2013 and 2016. The appellant encouraged the complainant to go back to school and engage in training. 26 A feature of the relationship between the complainant and the appellant was that the appellant generally worked interstate for significant periods where the pay was better. This, unsurprisingly, caused considerable strain in their relationship. 27 After his relationship with the complainant broke down in September 2018, the appellant became depressed. The appellant consented to the complainant’s mother taking custody of the children because he believed that would be best for the children. Despite initially spending time with the children, the appellant has not seen them in nearly four years, nor spoken with them in nearly three and a half years. 28 The sentencing judge was provided with a number of favourable character references which attested to the appellant’s very good work ethic and love for his children. The appellant was working in Queensland when he decided to move back to South Australia in order to see his children. He knew that he risked arrest. He was arrested a few weeks later on 25 May 2021. -- 6 of 25 -- [2024] SASCA 149 The Court 5 29 The appellant has no relevant prior convictions, though there are a number of driving offences. The approach of the sentencing judge 30 The sentencing judge commenced with the proposition that the most important factor in sentencing the appellant was the need to protect the safety of the community. Her Honour also regarded general and personal deterrence as important whilst, nonetheless, the sentence must promote the appellant’s rehabilitation. The sentencing judge explained to the appellant:6 What you need to understand is that the damage was done by you when she was 16. It was criminal for you to have a sexual relationship with her. It is not to the point that you think that she was happy in the relationship when she was older. The law is that children need to be protected from predatory conduct such as yours because the consequences for them are immediate and far reaching. 31 The sentencing judge added:7 The law protects children from predatory conduct by adults who take advantage of or exploit younger people and particularly younger people’s sexual inclinations. The predatory conduct causes children to suffer both psychological and physiological consequences. 32 The sentencing judge took the view that the complainant was entirely dependent upon the appellant, particularly as she had lost the support of a number of friends and family - the relationship with her father “almost became non-existent”. The sentencing judge took a dim view of the appellant’s attitude to his relationship with the complainant after it ceased to be unlawful:8 You seem to think that your ongoing relationship after she turned 17 makes what you did when she was 16 okay. It is quite the opposite. The fact that that relationship continued shows the extent to which you shaped and trapped a 16-year-old girl. She was not able to start finding herself again until 2018. Your lack of insight is apparent by your counsel’s submission that you bear the victim no ill-will. 33 The sentencing judge sentenced the appellant on the basis that he had “maintained a sexual relationship with the victim for about seven months when she was 16, and got her pregnant”.9 34 The sentencing judge did not consider that the sentencing standard in R v D applied because the appellant was not in a position of authority.10 Nevertheless, he had breached the trust of the complainant’s mother. 6 Appeal Book, 66. 7 Appeal Book, 66-67. 8 Appeal Book 67. 9 Appeal Book 67. 10 R v D (1997) 69 SASR 413. -- 7 of 25 -- [2024] SASCA 149 The Court 6 The contentions of the parties 35 The appellant submitted that the sentence was disproportionately high when compared with the objective seriousness of the offending and his favourable personal circumstances. The appellant submitted that the age of the complainant, and her relative maturity and sexual experience were relevant to sentence.11 It was submitted that the acquiescence of the complainant’s mother was not mitigatory, but reflected on the nature of the relationship, tending to indicate that it was less grave than other instances of this type of offending.12 36 The appellant also submitted that the sentencing judge placed too much emphasis on the contested nature of the relationship between the appellant and the complainant, without recognising that the relationship continued when the complainant was well into adulthood, and that there were two more children of the relationship cared and provided for in a traditional family setting. 37 The appellant submitted that the sentence was not proportionate to the circumstances of the offending and the offender. He was without any serious criminal antecedents and had led a productive life in the 12 or 13 years between his offending and arrest. 38 The appellant pointed to a number of recent sentences, submitting that, whilst care must be exercised when referring to other cases, they tended to support the proposition that the sentence in this case was manifestly excessive. 39 For present purposes it is sufficient to address the starting points adopted in the cases on which the appellant relied. These included the case of R v MacDermott,13 where the complainant was aged 14 years and the defendant was aged 27 years when the offending commenced. The defendant pleaded guilty to maintaining an unlawful sexual relationship with a child, contrary to s 50 of the CLCA. For a time, the complainant and the defendant lived together. The complainant was aged 15 years when she gave birth to a child, and she bore a second child when aged 18 years. In 2022 the starting point for the sentence which was imposed was imprisonment for seven years. 40 In R v Richardson,14 the complainant was aged 13 years, and the defendant was aged 23 years, at the time the offending commenced. The defendant pleaded guilty to maintaining an unlawful sexual relationship with a child, contrary to s 50 of the CLCA, and unlawful sexual intercourse, contrary to s 49 of the CLCA. The complainant bore a child during the course of the s 50 offending, and the defendant was on bail for that offending at the time of the s 49 offending. The offending spanned 22 months. The defendant was intellectually disabled and suffered from an untreatable terminal illness, mitochondrial disease. He maintained the belief 11 Relying on R v Jackson [2014] SASCFC 101, [18] (Peek J, with whom Blue and Stanley JJ agreed). 12 Relying on R v Dyett [2023] SASCA 41, [43] (Livesey P, Bleby and David JJA). 13 R v MacDermott (unreported, District Court of South Australia, No DCCRM-22-568, 11 August 2022). 14 R v Richardson (unreported, District Court of South Australia, Nos DCCRM-22-508 & 21-1199, 5 September 2022). -- 8 of 25 -- [2024] SASCA 149 The Court 7 that the complainant was between 16 and 17 years. The complainant was under the guardianship of the Minister and did not wish to participate in the proceedings. In 2022, the starting point for the sentence imposed was imprisonment for five years. 41 In 2023, the defendant in R v Slape was sentenced to imprisonment for four years following a verdict of guilty after a trial for s 50 offending.15 The complainant was 15 years and the defendant was 22 years when the offending commenced and continued over nine months. They were long-term family friends, and the defendant was found to be in a position of trust. At the time of his offending, the defendant was on bail for s 50 offending involving a different child, but he was subsequently acquitted of that offending. 42 In R v Long,16 the offending commenced when the complainant was aged 14 years and the defendant was aged 18 years. The defendant had an intellectual disability. He pleaded guilty to unlawful sexual intercourse, maintaining an unlawful sexual relationship with a child and possession of child exploitation material. The offending spanned five months. The complainant fell pregnant but miscarried. In 2023, the starting point adopted for the sentence for unlawful sexual intercourse was imprisonment for two years, and the starting point adopted for maintaining an unlawful sexual relationship with a child was imprisonment for five years. The starting point adopted for the sentence for the possession of child exploitation material was imprisonment for 10 months. After allowance for concurrency, the overall head sentence imposed was just over six years and six months. 43 In R v Cameron,17 the complainant was aged 16 years and the defendant was aged 21 years when the offending commenced. The defendant pleaded guilty to maintaining an unlawful sexual relationship with a child. The sentencing judge accepted that the defendant believed the complainant was 18 when the relationship began, but soon learned that she was 16. The complainant fell pregnant and gave birth at 17 years. The relationship continued for nearly two years, until a month before their second child was born. In 2023 the starting point adopted for sentence was imprisonment for three years and one month. 44 In late 2023, the defendant in R v Burk was sentenced for offending which commenced when the complainant was aged 15 years and the defendant was 22 years.18 They lived together for four years with their three children, initially with the defendant’s parents. The defendant pleaded guilty to maintaining an unlawful sexual relationship with a child. During a disputed facts hearing, it emerged that the defendant’s father warned him that he may go to gaol for having 15 R v Slape (unreported, District Court of South Australia, No DCCRM-21-1288, 10 February 2023). 16 R v Long (unreported, District Court of South Australia, No DCCRM-22-007387, 31 March 2023). 17 R v Cameron (unreported, District Court of South Australia, No DCCRM-22-33, 26 July 2023). 18 R v Burk (unreported, District Court of South Australia, No DCCRM-22-001999, 18 December 2023). -- 9 of 25 -- [2024] SASCA 149 The Court 8 sex with a child. The starting point adopted for sentence was imprisonment for six years. 45 The appellant then referred to two decisions of the Court of Appeal. In R v Dyett,19 the offending commenced when the complainant was aged 15 years and the defendant 21 years. The defendant pleaded guilty to maintaining an unlawful sexual relationship with a child. The offending spanned 18 months. After the complainant turned 18, the relationship continued for two years, during which they became engaged to be married and had a child. The sentencing judge relied on the defendant’s rehabilitation and positive contribution to the community in the 20 years following his offending. This included his regular employment and a new relationship which produced two children, one of whom had particularly significant needs which were largely being met by the defendant. Police had first been contacted in 2007 and the complainant had wavered about pressing the matter. The sentencing judge started with a two-year sentence of imprisonment. The Director failed to obtain permission to appeal. 46 In R v Lian,20 the Director obtained permission to appeal against a sentence of one year and 18 days, with a non-parole period of five months, imposed following a plea of guilty to maintaining an unlawful sexual relationship with a child. The offending commenced when the complainant was aged 14 years and the defendant turned 24 during the period of the offending. They were both members of the ethnic Chin community, a persecuted Christian minority in Myanmar. The offending commenced when the defendant overcame the complainant’s initial refusal to have sex in the cubicle of a public playground toilet. She said that she had not previously had sex. During intercourse the complainant asked to stop, but the defendant urged her to continue, causing her to bleed. She soon became pregnant, and their parents decided they should live together and eventually marry. 47 The defendant initially believed the complainant was 17 and that their relationship was lawful but he later learned that she was only 14. The defendant was said to be violent, and they separated three months after the birth of their child, when the complainant fled to a women’s shelter. The Court referred to the defendant’s refugee status and accepted that there may be some degree of hardship in custody.21 The Court re-sentenced the defendant to imprisonment based on a starting point of five years and six months. 48 The case for the appellant was that this review demonstrated that the sentence in this case was manifestly excessive. 49 The Director submitted that while the sentencing standard in R v D may not have been strictly engaged, the principles underlying the standard provided 19 R v Dyett [2023] SASCA 41 (Livesey P, Bleby and David JJA). 20 R v Lian [2023] SASCA 122 (Kourakis CJ, Lovell and Doyle JJA). 21 In R v Lian [2023] SASCA 122 Doyle JA (with whom Lovell JA agreed on this aspect) extensively reviewed the authorities concerning hardship in custody. -- 10 of 25 -- [2024] SASCA 149 The Court 9 guidance to courts formulating sentences for child sexual abuse.22 It was submitted that though a case may not involve any formal position of trust and authority there may be some abuse of trust, in which case the R & D standard provided significant guidance.23 50 In the submission of the Director, there was an informal position of trust arising out of the disparity in age and power imbalance. Reference was made to the appellant teaching the complainant to drive and supporting her whilst she grieved the loss of her aunt. 51 The Director submitted that sexual offending against children was inherently serious and required a strong sentencing response because there was a need to deter offending of this type, especially where victims are at risk of suffering serious psychological and emotional harm.24 52 The Director submitted that the pregnancy of the complainant should be regarded as an aggravating feature.25 53 The Director referred to recent cases where the Court has considered the principles relevant to sentencing where the complainant has “participated in or acquiesced to sexual behaviour that constitutes criminal conduct””. The complainant’s acquiescence or participation is not mitigatory,26 and “proper weight” had to be given to the relevance of these factors in the determination of “the objective seriousness of the offending”. 54 The Director submitted that the 13-year delay between offending and sentence was of limited significance,27 as it was necessary to ensure that offenders do not escape due punishment.28 The Director submitted that the case did not fall 22 R v D (1997) 69 SASR 413. Relying upon R v Chesterman (2017) SASCFC 31, [49] (Doyle J); Warner v The King (2022) 142 SASR 275, [20] (Kourakis CJ), [79]-[80] (Livesey P), [123] (Doyle JA). 23 R v Chesterman [2017] SASCFC 31, [45] (Doyle J); R v Dyett [2023] SASCA 41, [38] (Livesey P, Bleby and David JJA), where the Court acknowledged that the standard in R v D may apply “regardless whether the position of trust and authority is an informal one, such as where it is the product of a large disparity in age”; R v Lian [2023] SASCA 122, [100]-[101], [105]-[107] (Kourakis CJ): “There are not always clear, bright lines delineating formal positions of trust from informal ones …”. 24 R v McIntyre (2020) 138 SASR 17, [45]-[58] (Doyle J, with whom Stanley J and Hughes J agreed); R v Amos [2021] SASCA 126, [36] (Livesey P, Lovell and David JJA). 25 R v McIntyre (2020) 138 SASR 17, [62]-[63] (Doyle J, with whom Stanley J and Hughes J agreed); R v Lian [2023] SASCA 122, [113] (Kourakis CJ). 26 R v Williams (1990) 53 SASR 253, 254 (King CJ, with whom Millhouse and Olsson JJ agreed); Evans v The Queen [2019] SASCFC 145, [59] (Kelly and Parker JJ, with whom Stanley J agreed); Glade v The Queen [2020] SASCFC 83, [29]-[33] (Livesey J, with whom Kelly and Bleby JJ agreed); R v Dyett [2023] SASCA 41, [43] (Livesey P, Bleby and David JJA). 27 Turnbull (A Pseudonym) v R [2023] SASCA 121, [31] (Livesey P and Doyle JA), citing R v Stain [2021] SASCA 70, [46]-[47] (Kelly P, Bleby JA and Blue AJA). 28 Turnbull (A Pseudonym) v R [2023] SASCA 121, [31] (Livesey P and Doyle JA); R v V, AJ [2012] SASCFC 10, [3] (Doyle CJ); R v Quinn (2012) 114 SASR 354, [36] (Gray J, with whom Anderson and Sulan JJ agreed); R v Stain [2021] SASCA 70, [46]-[47] (Kelly P, Bleby JA and Blue AJA). -- 11 of 25 -- [2024] SASCA 149 The Court 10 within the ambit of the “unusual or difficult” circumstances reviewed in R v Dyett, where the offender’s successful rehabilitation justified a mitigatory sentence.29 55 In these circumstances, it was submitted that the sentence was not manifestly excessive because it was well below the 10-year guideline established in R v D for sexual offending against a child over 14 years. The Director submitted that both the head sentence and the non-parole period, at around 55 per cent of the head sentence, appropriately reflected the matters personal to the appellant and the context of the offending. The determination of the application for permission to appeal 56 The appellant must demonstrate that the sentence imposed by the sentencing judge was unreasonable or plainly unjust. That is a conclusion which may be reached only after considering the sentence as a whole, together with all matters relevant to fixing sentence, including the standards of sentence customarily observed concerning crimes of the type under consideration.30 As was explained in Hackett v The Queen:31 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.32 The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence.33 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.34 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.35 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.36 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.37 57 There is a natural tendency to group cases into familiar categories when identifying the starting point for determining sentence. In this way particular offences can become associated with particular sentences or ranges for sentence even where there is no true tariff. Appeal courts strive to ensure consistency, and 29 R v Dyett [2023] SASCA 41, [41]-[55] (Livesey P, Bleby and David JJA). 30 House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ); R v Morse (1979) 23 SASR 98, 99 (King CJ, with whom White and Mohr JJ agreed). 31 Hackett v The Queen [2021] SASCA 32, [8] (Kelly P, Lovell and Livesey JJA). 32 Elias v The Queen (2013) 248 CLR 483. 33 Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 34 House v The King (1936) 55 CLR 499. 35 Barbaro v The Queen (2014) 253 CLR 58, [61] (Gageler J). 36 Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 37 R v Pham (2015) 256 CLR 550, [56] (Bell and Gageler JJ). -- 12 of 25 -- [2024] SASCA 149 The Court 11 with that comes a measure of predictability associated with the imposition of sentence. That is one of the purposes of any sentencing standard. 58 There can be no complaint about this process provided it is remembered that the point of determining an appropriate and just sentence is to impose a punishment that is proportionate to the particular circumstances of the offending and the offender. And, as has often been observed, there is nothing rigid about sentencing standards.38 The need for individualised justice in a given case requires the imposition of a just sentence, representing the exercise of a broad judicial discretion concerned with doing justice in the particular case before the Court.39 Recent decisions in the Court of Appeal 59 When looking at the standards of sentence customarily observed concerning crimes of the type under consideration, it is helpful to consider a number of recent decisions which have come before the Court of Appeal. As always, it is necessary to have regard to other sentences imposed in other cases with caution and circumspection given the wide disparity in the circumstances of the offending and the offender in cases such as the present. 60 In the case of R v Butler (A Pseudonym),40 the Director was given permission to appeal (by a majority) against a sentence imposed for two counts of unlawful sexual intercourse contrary to s 49(3) of the CLCA. The Crown accepted those pleas in satisfaction of the Information which had included a count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the CLCA. The sentencing judge had recorded a conviction and sentenced the defendant to a good behaviour bond without imposing any further penalty. This was found by the majority to be so manifestly inadequate that it warranted the grant of permission to appeal. The offending commenced in December 2015 and ended in September 2017. The charged offending occurred when the defendant was 23 years, and the complainant was a few weeks shy of her 17th birthday. The defendant had a number of favourable personal circumstances. The Court of Appeal re-sentenced the defendant to imprisonment for a period of three years with a non-parole period of 18 months. 61 In R v Seymour (A Pseudonym),41 the defendant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the CLCA. The Court granted the Director permission to appeal against a sentence where the sentencing judge had adopted a starting point of six years’ imprisonment. The offending commenced when the complainant was 15 years and the defendant was 39 years in circumstances of considerable dependence and 38 R v King (1988) 48 SASR 555, 557-558 (Cox J); Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [54]-[56] (Livesey P, Doyle and David JJA); Henry v The Queen (2022) 141 SASR 230, [137] (Doyle JA, with whom Livesey P and David JA agreed); Warner v The King (2022) 142 SASR 275, [80] (Livesey P). 39 Elias v The Queen (2013) 248 CLR 483, [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ). 40 R v Butler (A Pseudonym) [2022] SASCA 112 (David JA and Mazza AJA, Lovell JA dissenting). 41 R v Seymour (A Pseudonym) [2024] SASCA 41 (Kourakis CJ, Bleby and David JJA). -- 13 of 25 -- [2024] SASCA 149 The Court 12 vulnerability in the complainant. The complainant and her sister had been living with a friend of their mother. That friend had been in an intimate relationship with the defendant. After the complainant became homeless, she moved in with the defendant. The offending commenced before the complainant turned 16 years, and continued for over 12 months. The first occasion on which the defendant and the complainant had sexual intercourse followed the defendant providing the complainant with cannabis and forcing himself upon her. 62 Sexual intercourse in R v Seymour continued almost daily even when the complainant did not want to have sexual intercourse. When the complainant was still 16 years, the defendant introduced another adult into the unlawful sexual relationship. At times all three were engaged in sexual activity. The defendant provided the complainant and the other adult with drugs and alcohol and filmed some of their sexual activity. On a number of occasions, the defendant filmed himself having sexual intercourse with the complainant and kept the media files. On other occasions, the defendant took the complainant to a different property and photographed her posing naked. He required that she engage in sexual activity with sex toys and there were media files depicting this activity. At times, the defendant threatened to disseminate the videos should the complainant ever leave him. 63 The defendant and the complainant remained in a relationship for around 12 years. The complainant became pregnant at around 21 years of age and gave birth to a girl. The defendant’s threats continued and extended to threats of harm to the complainant and her family. On one occasion he threatened to torture members of the complainant’s family in front of her. The complainant’s victim impact statement spoke about having been affected by post-traumatic stress, anxiety, depression and having flashbacks and trauma. 64 The Court reviewed the authorities which had regarded R v D as providing guidance even where it did not strictly apply. For example:42 It is strictly true that in the present case, there was no formal relationship of trust. However, that does not warrant the simplified conclusion that ‘R v D does not apply’. The cases considered above show that R v D nonetheless had an important role in providing guidance. C had assumed, however informally, a parental role in respect of the complainant. The respondent, by reason of his relationship with C, was initially in the house that was serving as the complainant’s home. That relationship enabled his actions. 65 The Court held that the sentencing judge had materially understated the objective seriousness of the offending and, on re-sentence, adopted a starting point of imprisonment for nine years. 66 In R v Bradley,43 the court again granted the Director permission to appeal in a case where the defendant had pleaded guilty to two counts of maintaining an unlawful sexual relationship with two different children, contrary to s 50(1) of the 42 R v Seymour (A Pseudonym) [2024] SASCA 41, [47] (Kourakis CJ, Bleby and David JJA). 43 R v Bradley [2024] SASCA 56 (Lovell, Bleby and David JJA). -- 14 of 25 -- [2024] SASCA 149 The Court 13 CLCA. The case is unusual because it concerned separate offending 20 years apart. The first period of offending spanned 12 months, commencing when the female complainant was 16 years, and the defendant was between 28 and 29 years. It progressed to regular sexual intercourse on hundreds of occasions. The defendant submitted to the sentencing judge that he had believed he was in a committed and loving relationship, and believed the complainant felt similarly. The Court observed that this submission had not been contradicted.44 67 The second period of offending in R v Bradley spanned 12 months against a male complainant when he was aged between 15 and 16 years, and the defendant was 47 years. They met on a social media application “Grindr” and, initially, the defendant believed the complainant was 18 years. When the complainant told the defendant that he was only 15, the defendant said he “didn’t mind”. The offending spanned five occasions and commenced with mutual fellatio and progressed to one occasion of penile-anal intercourse. 68 For the offending against the female complainant, the sentencing judge in R v Bradley had started with a sentence of imprisonment for two years, and for the male complainant, his Honour had started with a sentence of imprisonment for seven years. The Court was critical of the disparity in the sentences,45 and re-sentenced the defendant in respect of the earlier offending to a starting point of imprisonment for six years and six months. As for that offending, the Court found that there was grooming of the complainant by the defendant and, in addition, whether they believed they were in a relationship and that this was known within their community did not mitigate the defendant’s conduct.46 After allowance was made for the pleas of guilty, the total sentence imposed was 11 years, five months and four days. 69 In Baxter (A Pseudonym) v The King,47 the defendant pleaded guilty to two counts of unlawful sexual intercourse with a person under 14 years, contrary to s 49(1) of the CLCA, and one count of aggravated indecent assault, contrary to s 56 of the CLCA. The defendant was the biological father of the complainant. There were uncharged acts, including earlier offending in New South Wales between 2008 and 2009, for which the defendant was sentenced to five years and six months’ imprisonment. The offending spanned three and a half years between 2009 and 2013 when the complainant was between seven and 10 years, and involved digital penetration on two occasions and touching her breasts on another. The sentencing judge had adopted a starting point for the offending of imprisonment for nine years. 70 The Court in Baxter (A Pseudonym) v The King held that the sentencing judge had inadequately applied the principle of totality explained in Mill v The Queen.48 44 R v Bradley [2024] SASCA 56, [49] (Lovell, Bleby and David JJA). 45 R v Bradley [2024] SASCA 56, [66]-[70] (Lovell, Bleby and David JJA). 46 R v Bradley [2024] SASCA 56, [65]-[66] (Lovell, Bleby and David JJA). 47 Baxter (A Pseudonym) v The King [2024] SASCA 64 (Livesey P, David JA and Stein AJA). 48 Mill v The Queen (1988) 166 CLR 59 (Wilson, Deane, Dawson, Toohey and Gaudron JJ). -- 15 of 25 -- [2024] SASCA 149 The Court 14 The Court resentenced the defendant on the basis that, had all the offending been addressed in this State, R v D applied to a period of offending that spanned five years and five incidents, comprising three acts of digital penetration and two acts of indecent touching (outside the clothes, once on the vagina and once on the chest) against a background of uncharged indecent touching of the complainant’s chest over her clothes.49 The egregious features associated with the defendant’s offending included the complainant’s very young age and that the offending involved a degree of force in that the penetrative acts hurt her.50 The Court held that the starting point should have been 12 years, not the 14 years produced by a combination of the sentence imposed in New South Wales and the sentence imposed in South Australia. The Court re-sentenced the defendant for the offending in this State based on a starting point of imprisonment for six years and six months. 71 In R v Berry,51 the Court of Appeal refused the Director permission to appeal against a sentence of sexually abusing a child, contrary to s 50(1) of the CLCA. The sentencing judge had adopted as a starting point a sentence of imprisonment for five years. The defendant had also pleaded guilty to various offences concerning child exploitation material. The offending spanned around two years when the male complainant was aged between 15 and 16 years and the defendant was between 35 and 37 years. They had met through the complainant’s father, who worked with the defendant. The offending included acts of fellatio, despite the complainant initially refusing, associated with the defendant’s professions of love and threats of self-harm if the complainant did not admit to loving the defendant. There were multiple acts of indecent assault and occasions when the defendant procured the complainant to engage in sexual activity by masturbating and sending the defendant videos in return for payments. The harm caused to the complainant was profound and long-lasting. 72 The Court reviewed a number of recent statements of principle, explaining the way R v D was of obvious importance in many cases involving the sexual abuse of a child in contravention of s 50(1) of the CLCA, even where it was not directly applicable:52 It is to be accepted that sexual offending against children, including teenagers, is inherently serious and requires a strong sentencing response in order to protect the community, deter and punish. In part this reflects the fact that it is now well understood that such offending is often marked by significant and long-lasting psychological and emotional, and sometimes physical, harm caused to the victims.53 49 Baxter (A Pseudonym) v The King [2024] SASCA 64, [47]-[52] (Livesey P, David JA and Stein AJA). 50 Baxter (A Pseudonym) v The King [2024] SASCA 64, [43] (Livesey P, David JA and Stein AJA). 51 R v Berry [2024] SASCA 116 (Doyle, Bleby JJA and Hall AJA). 52 R v Berry [2024] SASCA 116, [65]-[69] (Doyle, Bleby JJA and Hall AJA). 53 R v MJJ; R v CJN (2013) 117 SASR 81, [84] (Kourakis CJ, Vanstone J agreeing); R v McIntyre (2020) 138 SASR 17, [45]-[60] (Doyle J, Stanley and Hughes JJ agreeing); R v Amos (a pseudonym) [2021] SASCA 126, [36] (Livesey P, Lovell and David JJA); Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [52] (Livesey P, Doyle and David JJA). -- 16 of 25 -- [2024] SASCA 149 The Court 15 The seriousness of the offending is reflected in the sentencing standard in R v D. As Doyle CJ explained in that case, the standard was determined having regard to the need for sentences in cases involving sexual offending against children to reflect the ‘feeling of outrage and revulsion in the community’; the likelihood of serious harm to victims of a prolonged, perhaps lifelong, duration; the insidious effect of the offending upon the community more generally; the prevalence of such offending; the need to deter would be child sex offenders; and the maximum penalties for such offending.54 The continued importance of maintaining the standard reflected in R v D has been affirmed in several recent decisions of this Court.55 The standard applies most directly in 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.56 It is of obvious importance in many cases involving the sexual abuse of a child in contravention of s 50(1) of the CLCA (formerly referred to as maintaining an unlawful sexual relationship with a child). But it also informs, and assists, sentencing for sexual offences involving a child more generally.57 At the same time, this Court has repeatedly emphasised the flexibility that is appropriate, indeed required, in applying the guidance provided by R v D.58 In each case, it will be necessary to have regard to considerations such as the nature and frequency of the offending; the duration of the period over which it occurred; the relationship between the offender and victim, including the extent to which the offender was in a position of trust and authority, or otherwise groomed or exploited the victim; the age and vulnerability of the victim; the age disparity between the offender and victim; whether the offending involved any use of force or coercion; the impact of the offending upon the victim; and the personal circumstances of the offender. 73 The Court considered the matters indicative of the offending being less serious than other cases, including the fact that the sexual acts were not of the most serious kind, and that the respondent was not in any formal position of trust and authority. After accepting that the offending was not as invasive or depraved as in some other cases, and warning about the need to avoid generalisations or assumptions, the Court reinforced the need to address the seriousness of the offending having regard to its individual circumstances, including the effect on the complainant.59 74 The Court accepted that while a formal position of trust and authority was significant, that kind of position may arise more informally, and it was necessary to consider the nature of the relationship between a defendant and a complainant 54 R v D (1997) 69 SASR 413, 423 (Doyle CJ); Warner v The King (2022) 142 SASR 275, [119] (Doyle JA). 55 Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [51], [54] (Livesey P, Doyle and David JJA); Warner v The King (2022) 142 SASR 275, [19]-[20] (Kourakis CJ); R v Lian [2023] SASCA 122, [94]- [107] (Kourakis CJ, Lovell and Doyle JJA agreeing); R v Bradley [2024] SASCA 56, [61] (Lovell, Bleby and David JJA). 56 R v D (1997) 69 SASR 413, 423 (Doyle CJ). 57 Warner v The King (2022) 142 SASR 275, [79]-[80] (Livesey P), [118] (Doyle JA); Burgoyne v The King [2024] SASCA 61, [21] (Livesey P, Bleby and David JJA). 58 For example, Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [54]-[56] (Livesey P, Doyle and David JJA); Warner v The King (2022) 142 SASR 275, [80] (Livesey P), [123] (Doyle JA); R v Bradley [2024] SASCA 56 (Lovell, Bleby and David JJA). 59 R v Berry [2024] SASCA 116, [72]-[73] (Doyle, Bleby JJA and Hall AJA). -- 17 of 25 -- [2024] SASCA 149 The Court 16 “more broadly”.60 The Court considered that though there was no physical force or coercion, there was significant exploitation between a middle-aged man and a teenaged complainant who was impressionable and vulnerable.61 In refusing the Director permission to appeal, the Court explained that it was necessary to consider that a single sentence for all offending was ultimately imposed and the application was directed to the overall sentence, not just the five years imposed for the s 50 offending:62 … the Director’s submission of manifest inadequacy must, strictly speaking, be considered as a challenge to the sentence ultimately imposed, and not simply a component of that sentence. A component of a sentence which, when viewed in isolation, appears to be unduly harsh or lenient, may lose that character when seen in the context of the overall sentencing exercise. However, a challenge to a component which represents a significant part of the total sentence may in some cases be sufficient to make out manifest inadequacy in the sentence as a whole. But there is a further complication where the impugned component forms part of a total sentence which was properly the subject of a reduction for totality so as to ensure proportionality with the overall criminality of the offending, and the offender’s personal circumstances. 75 The Court preferred to express no concluded view on whether the five-year starting point for the s 50 component of the overall sentence of seven years and six months was manifestly inadequate.63 76 Recently, this Court reiterated that the sentencing guidance provided by R v D may be relevant even if it is not directly applicable, particularly where the features relevant to that sentencing standard are also found in the subject offending. That is to say, where the child sex offending includes the aggravating features of unlawful sexual intercourse by a defendant in a position of trust and authority, comprising a course of conduct over a period of around two months or more. Where some or all of these features are absent, the sentencing guidance may not apply directly. In Brooker v The King the Court explained:64 In connection with the appellant’s challenge to the notional sentences set for the sexual abuse of a child offending contrary to s 50 of the CLCA, one proposition appeared to be that the circumstances of this case did not warrant application of the sentencing standard in R v D.65 It will be recalled that that sentencing standard addressed child sex offending involving unlawful sexual intercourse by an offender in a position of trust and authority over a period of two months, where a starting point of imprisonment for 10 years was selected for cases involving children aged 12 years or older, and 12 years for children under 12 years.66 60 R v Berry [2024] SASCA 116, [74]-[75] (Doyle, Bleby JJA and Hall AJA). 61 R v Berry [2024] SASCA 116, [75] (Doyle, Bleby JJA and Hall AJA). 62 R v Berry [2024] SASCA 116, [82] (Doyle, Bleby JJA and Hall AJA). 63 R v Berry [2024] SASCA 116, [86]. 64 Brooker v The King [2024] SASCA 135, [84]-[86] (Livesey P, David JA and Bond AJA); see also R v Berry [2024] SASCA 116, [65]-[69] (Doyle and Bleby JJA and Hall AJA). 65 R v D (1997) 69 SASR 413. 66 But which now operates where children are aged 14 years or older, or under 14 years, following the 2005 amendments to s 49(1) of the CLCA; see Warner v The King (2022) 142 SASR 275, [77] (Livesey P), [121] (Doyle JA); Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA), s 11. -- 18 of 25 -- [2024] SASCA 149 The Court 17 One difficulty with the appellant’s submission is that though the sentencing standard in R v D applies directly to sexual abuse cases involving a course of conduct which includes unlawful sexual intercourse with a child committed by a person in a position of trust and authority, it remains relevant in other cases, including those involving the sexual abuse of children in contravention of s 50 of the CLCA.67 It both informs and assists sentencing for sexual offending involving children more generally.68 Accordingly, even if the sentencing standard in R v D is not directly applicable, it may still be relevant and influential in cases sharing features similar to those which underpin the sentencing standard, including cases under s 50 of the CLCA. That is to say, in cases of child sexual abuse involving sexual intercourse where the child may be thought vulnerable to exploitation by an offender who, though not in any formal position of trust and authority, is nonetheless able to manipulate and exercise influence over the child. 77 That was a case of child sexual abuse at the upper end of seriousness, involving nearly 100 identifiable children and a combination of s 50 and other communication offences committed in person and over the internet, together with a volume of the worst examples of child exploitation material. The Court rejected the proposition that a sentence of 36 years with a non-parole period of 29 years was manifestly excessive. 78 This review demonstrates that this Court has taken into account features such as the following when determining the seriousness of child sexual abuse offending, including under s 50 of the CLCA:69 1. The age of the complainant child. That is especially but not only where the child is very young, such as the complainant aged between six and ten years in Baxter (A Pseudonym) v The King,70 and the complainant in R v D, who was 13 years. 2. The comparative ages of the defendant and the complainant. The comparison may indicate paedophilia and the need to give prominence to the primary sentencing purpose of protecting the safety of the community (whether as individuals or in general).71 In other cases, a marked age disparity may indicate some prospect of the defendant occupying an informal position of authority and consequently scope for influence to be exercised over an immature or otherwise vulnerable complainant. Separately, there are a 67 In the same way as the sentencing standard in R v Young (2016) 126 SASR 141 may be relevant even where it is not directly applicable, see R v Howell [2018] SASCFC 12, [32] (Kourakis CJ, Nicholson and Doyle JJ); Da Silva v The Queen [2020] SASCFC 66, [43] (Livesey J, with whom Kourakis CJ and Stanley J agreed). 68 R v D (1997) 69 SASR 413, 423 (Doyle CJ); Warner v The King (2022) 142 SASR 275, [79]-[80] (Livesey P), [118] (Doyle JA); Burgoyne v The King (2024) SASCA 61, [21] (Livesey P, Bleby and David JJA). 69 See, for example, Baxter (A Pseudonym) v The King [2024] SASCA 64, [43] (Livesey P, David JA and Stein AJA); R v Berry [2024] SASCA 116, [69] (Doyle, Bleby JJA and Hall AJA). 70 Baxter (A Pseudonym) v The King [2024] SASCA 64 (Livesey P, David JA and Stein AJA). 71 Sentencing Act 2017 (SA), ss 3 and 9. -- 19 of 25 -- [2024] SASCA 149 The Court 18 number of different and difficult issues that can arise in the “close in age” cases.72 3. The relationship between the defendant and the complainant. a. Whether there is a formal position of trust and authority occupied by the defendant with respect to the complainant. This aggravating feature underpins the sentencing standard in R v D and is now reflected in the “position of authority” definition in ss 49(5) and 49(9) of the CLCA for the offence of unlawful sexual intercourse. An example of a seriously aggravating feature is where the defendant is the parent or has assumed the role of a parent towards a complainant. More nuanced and fact- specific considerations may arise in cases involving informal positions of trust and authority concerning vulnerable complainants, especially where there is evidence of “grooming”. These considerations will inform the culpability of the defendant.73 b. The nature of any relationship between the defendant and the complainant.74 It must nonetheless always be emphasised that sexual activity between an adult defendant and a child complainant is contrary to law, and any acquiescence by the child or the child’s family is not mitigatory.75 The point of offences such as ss 49 and 50 of the CLCA is to protect children, including against their own immaturity and sexual inclinations, before they reach an age where the law allows them to make their own decisions about sexual activity.76 4. Whether the offending is isolated or occurs over a period of time on multiple occasions and represents a course of conduct. That the child sex abuse offending spanned a regular course of conduct over two months or so was another feature of R v D. A number of cases have spanned a period of some years. Nonetheless, some cases of isolated offending have been regarded as particularly serious.77 Whether the offending ceases only on arrest or ceased 72 R v Harris [2023] SASCA 129, [55]-[59] (Livesey P, Lovell and Bleby JJA). 73 R v Berry [2024] SASCA 116, [74]-[75] (Doyle and Bleby JJA and Hall AJA), citing R v Chesterman [2017] SASCFC 31, [46] (Doyle J, with whom Kelly and Parker JJ agreed); R v Dyett [2023] SASCA 41, [38] (Livesey P, Bleby and David JJA); R v Lian [2023] SASCA 122, [98], [100], [105] (Kourakis CJ); R v Bradley [2024] SASCA 56, [66] (Lovell, Bleby and David JJA). 74 R v Dyett [2023] SASCA 41, [43] (Livesey P, Bleby and David JJA), referring to the bench of five in the Victorian Court of Appeal decision of Clarkson v The Queen (2011) 32 VR 361, 365 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA) where reference was made to what might be termed genuine “close in age” relationships. 75 Evans v The Queen [2019] SASCFC 145, [32]-[34] (Kelly and Parker JJ, with whom Stanley J agreed); R v Dyett [2023] SASCA 41, [43] (Livesey P, Bleby and David JJA); Clarkson v The Queen (2011) 32 VR 361, 365 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA). 76 R v Williams (1990) 53 SASR 253, 254 (King CJ, Millhouse and Olsson JJ); Glade v The Queen [2020] SASCFC 83, [29]-[33] (Livesey J, with whom Kelly and Bleby JJ agreed). 77 R v Bahrami (2020) 137 SASR 327, [4]-[8] (Kourakis CJ); [81]-[85] (Livesey J). -- 20 of 25 -- [2024] SASCA 149 The Court 19 voluntarily (as occurred in R v D) will be relevant to an assessment of the defendant’s culpability and insight. 5. The nature of the offending conduct, and whether the sexual activity extends to and includes “sexual intercourse”, as defined by the CLCA. This was another feature of the R v D sentencing standard. The Court has however often warned against making generalisations and assumptions, particularly about the likely effect of particular offending on a complainant.78 There are examples of invasive and depraved offending which have been regarded as particularly serious.79 6. Where the offending is characterised by coercion or physical violence, that will be regarded as an aggravating feature.80 7. Where the defendant has impregnated the complainant, that will usually be regarded as an aggravating feature.81 8. Where the defendant has offended against multiple complainants is an important, aggravating feature.82 9. The harm caused to the complainant. 10. The defendant’s personal circumstances, including whether any proved rehabilitation may suggest less need for personal deterrence. General deterrence, punishment, denunciation and community protection will, however, usually remain important sentencing considerations.83 The circumstances of this case 79 Whilst the parties were agreed that the sentencing standard in R v D did not apply directly to the offending, there were features that suggested that it provided guidance. 80 In this case, the appellant breached the trust of the complainant’s mother. He had been welcomed into the home by the complainant’s mother on the basis that he was not to commence a relationship with either of her daughters. In addition, 78 R v Beaumont [2023] SASCA 128, [48] (Livesey P, Lovell and Bleby JJA), applying R v Friesen [2020] 1 SCR 424, [146]. See also Musgrave v Western Australia (2021) 289 A Crim R 17, [3]-[8] (Quinlan CJ), as applied in this Court in, for example, Baxter (a pseudonym) v The King [2024] SASCA 64, [45] (Livesey P, David JA and Stein AJA); Turnbull (a pseudonym) v The King [2023] SASCA 121, [29] (Livesey P and Doyle JA); Warner v The Queen (2022) 142 SASR 275, [139] (Doyle JA); Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [55] (Livesey P, Doyle and David JJA); R v Berry [2024] SASCA 116, [72] (Doyle and Bleby JJA and Hall AJA). 79 Brooker v The King [2024] SASCA 135, [38] (Livesey P, David JA and Bond AJA). 80 Baxter (A Pseudonym) v The King [2024] SASCA 64, [43] (Livesey P, David JA and Stein AJA). 81 R v McIntyre (2020) 138 SASR 17, [61]-[63] (Doyle J, with whom Stanley and Hughes JJ agreed); R v Lian [2023] SASCA 122, [113] (Kourakis CJ). 82 These cases were recently reviewed in Edmonds (a pseudonym) v The Queen [2022] SASCA 11 and Warner v The Queen (2022) 142 SASR 275. 83 R v D (1997) 69 SASR 413, 423 (Doyle CJ); R v Dyett [2023] SASCA 41, [50]-[53] (Livesey P, Bleby and David JJA); R v Harris [2023] SASCA 129, [7]-[9] (Livesey P, Lovell and Bleby JJA). -- 21 of 25 -- [2024] SASCA 149 The Court 20 there was undoubtedly influence exercised by the appellant of 27 years over the 16-year-old complainant before and during the seven months or so that the offending subsisted. 81 It followed that this was a case involving an informal position of trust and the natural authority produced by the disparity in age between the appellant and the complainant.84 As well, the impregnation of the complainant was an aggravating feature of the appellant’s offending. 82 In this case the complainant was 16 years and five months. That is older than most of the complainants in recent cases. The complainant appeared to be of ordinary maturity for her age. These features are of some relevance when considering the relative gravity of the offending. 83 There was formerly a tendency in some cases to take into consideration the sexual experience of the complainant.85 That approach, even if confined to “indicating where in the spectrum of offending” the case lies,86 is best avoided. That is so even though the nature of any relationship between a defendant and the complainant is relevant to sentence. Indeed, the language used to describe any relationship between a defendant and a complainant during offending in cases such as these is important:87 … Associated with these considerations is the need for sentencing courts to avoid labelling the context in which abuse occurs as “loving”, or “caring” or “consensual, but not in a legal sense” for stereotypes such as these risk occluding the risk of harm and, in effect, treating the victim’s acquiescence as a form of mitigation. To proceed in that way entails an error of law. It has been repeatedly held that the victim’s acquiescence or “consent” is not mitigatory.88 84 Any acquiescence in the offending by adults is not mitigatory, because it remains the obligation of adults to protect children from their own immaturity and preparedness to engage in unlawful sexual activity.89 84 R v Dyett [2023] SASCA 41, [38] (Livesey P, Bleby and David JJA); R v Lian [2023] SASCA 122, [105]-[107] (Kourakis CJ). 85 See, for example, The Queen v B, J [2007] SASC 67, [16]-[22] (Gray J, with whom Perry J agreed), “the complainant was not only a willing participant but was “pro-active in her pursuit of sexual activity”. Counsel further pointed out that, according to the appellant, the complainant led him to believe that she was sexually experienced. … whether he accepted the submission that she was proactive and sexually experienced …. was an important matter”; R v Jackson [2014] SASCFC 101, [16]-[18] (Peek J, with whom Blue and Stanley JJ agreed), where the complainant’s level of sexual experience and willingness to engage in sexual activity were said to be matters relevant to sentencing. 86 R v Jackson [2014] SASCFC 101, [18] (Peek J, with whom Blue and Stanley JJ agreed). 87 R v Harris [2023] SASCA 129, [54] (Livesey P, Lovell and Bleby JJA). 88 R v Williams (1990) 53 SASR 253, 254 (King CJ); Glade v The Queen [2020] SASCFC 83, [29]-[33] (Livesey P, with whom Kelly and Bleby JJ agreed); R v Dyett [2023] SASCA 41, [43]. See also R v Friesen [2020] 1 SCR 424, [154]. 89 R v Williams (1990) 53 SASR 253, 254 (King CJ, with whom Millhouse and Olsson JJ agreed); Glade v The Queen [2020] SASCFC 83, [29]-[33] (Livesey J, with whom Kelly and Bleby JJ agreed); R v Dyett [2023] SASCA 41, [43] (Livesey P, Bleby and David JJA); R v Harris [2023] SASCA 129, [54] (Livesey P, Lovell and Bleby JJA). -- 22 of 25 -- [2024] SASCA 149 The Court 21 85 Finally, on a number of occasions during sentencing submissions, and in her remarks, the sentencing judge criticised the appellant regarding the course of the relationship between the appellant and the complainant after the offending ceased. This raises a difficult issue which must be approached with considerable care. It was undoubtedly an aggravating feature that the appellant impregnated the complainant. The complainant bore triplets as the direct result of sexual activity with an adult at a time earlier than the law allowed.90 No doubt the complainant welcomed and loves her children. Nonetheless she was denied the opportunity to make a considered decision about having children at an age and at a time the law allowed. 86 Having said that, too much emphasis was given to what occurred after the offending by the appellant and the sentencing judge. That the appellant and the complainant continued in a relationship for around nine years, had two more children, and seriously contemplated marriage, could not obviate the conclusion that the defendant had breached s 49 and thereby s 50 of the CLCA. 87 Nonetheless, for the appellant, it was relevant to point to his conduct over the 12 or 13 years that followed his offending to demonstrate what he contended were his favourable personal circumstances and the contribution he made to the community generally. These were relevant to an assessment of the appellant’s rehabilitation prospects, need for personal deterrence and likely capacity to make a constructive contribution to the community in the future.91 There were a number of favourable circumstances suggesting some scope for leniency. As well, the sentencing court was entitled to take into consideration that one product of the appellant’s offending and sentence was that it would be difficult for him to restore the relationship he evidently wanted with his children when he voluntarily returned to South Australia. 88 However, whether the lawful relationship between the appellant and the complainant was at some stage happy or mutually rewarding was, at best, remote from and only indirectly relevant to these considerations. It certainly did not serve to mitigate the offending as the appellant’s submissions to the sentencing judge and this Court suggested. 89 The sentencing remarks extended to a rebuke that the continuation of the relationship showed how the appellant had “shaped and trapped” the complainant and that the complainant “was not able to start finding herself again until 2018”. The sentencing judge did not explain what she meant when she spoke of the complainant “finding herself again”. This comment may have been a reference to what the complainant said in her victim impact statement, but that statement on this topic was largely confined to what the complainant should have been doing at 90 See, for example, the review of s 49 undertaken in R v Harris [2023] SASCA 129, [57], [69]-[75] regarding the “close in age” cases and the defences which may be available, including where there is a marriage, see s 49(8) of the CLCA. 91 R v Dyett [2023] SASCA 41, [50]-[53] (Livesey P, Bleby and David JJA); R v Harris [2023] SASCA 129, [52]-[53] (Livesey P, Lovell and Bleby JJA). -- 23 of 25 -- [2024] SASCA 149 The Court 22 16 years, during the time of the offending, not what she was doing in her mid-twenties when her relationship with the defendant came to an end. 90 It would be beyond the proper scope of sentencing remarks in cases such as these to delve into why a lawful relationship lasting some years may have ended or who, if anyone, may have been at fault. In this case, it was never suggested by the appellant that what was said was an error, or that it should be a ground of appeal. The general topic may have arisen only in response to the approach taken by the appellant before the sentencing court. 91 Although proper consideration and effect must always be given to the harm actually and potentially caused to a complainant by child sexual abuse offending, it may be unfair and wrong to suggest that everything that has occurred to a complainant in the years following the offending, and during the course of a lawful relationship, must necessarily be on the offender’s account and regarded as an aggravating feature. Likewise, it may be unfair and wrong to refuse to credit an offender with any positive contributions made in the community in the years since the offending. The weight to be given to matters such as these will necessarily depend on the facts and circumstances of the case before the sentencing court. 92 Indeed, in some cases it may be established to the satisfaction of the court, and without dispute from the defendant, that later events and psychiatric or other kinds of harm are all the product of the offender’s abuse. As always, assumptions are to be avoided and care must be exercised. 93 The requirement to afford individualised justice requires that the determination of sentence in each case must turn on the particular facts and circumstances established before the sentencing court. 94 In this matter the appellant was a mature adult of 27 years, who had previously been married. The offending spanned seven months, and commenced when the complainant was 16 years and five months. She was impregnated in the course of the offending. The offending involved the breach of an informal position of trust and the natural authority produced by a significant age disparity. There was no suggestion that the complainant was other than of normal maturity for her age. After a time, the relationship was supported by some but not all of the complainant’s family, though this is not a mitigating feature. The offending deprived the complainant of the chance to make decisions about whether to have children in a committed relationship at a time when the law permitted. 95 The appellant’s personal circumstances were generally favourable. He is remorseful and his conviction and sentence will play a part in impeding his wish to restore contact with his five children. There is a very low prospect of re-offending and, in that respect, this is not a case where personal deterrence is a sentencing consideration of any real significance. Nonetheless, general deterrence, punishment and denunciation remain important sentencing considerations. -- 24 of 25 -- [2024] SASCA 149 The Court 23 96 The starting point of a sentence of imprisonment for seven years is high and could well have been lower, but it is not manifestly excessive. Together with a lower than normal non-parole period, the sentence as a whole is not manifestly excessive. Conclusion 97 The appeal is dismissed. -- 25 of 25 --