THE KING v KEVIN BEAUMONT [2023] SASCA 128

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR AUXILIARY JUDGE BARRETT) DCCRM-22-389 Appellant: THE KING Counsel: MR M HINTON KC WITH MS L KELLY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: KEVIN BEAUMONT Counsel: MS S BURGESS - Solicitor: LACHLAN MCAULIFFE BARRISTER & SOLICITOR Hearing Date/s: 16/10/2023 File No/s: SCCRM-23-031924 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 BEAUMONT [2023] SASCA 128 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby) 30 November 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS Crown appeal against sentence. The respondent pleaded guilty to three counts of indecent assault and two counts of aggravated indecent assault which had occurred in 2019 and 2020. The maximum penalty for the indecent assault offending was imprisonment for eight years, and for the aggravated indecent assault offending, imprisonment for 10 years (as one complainant was under 14 years). At the time of sentencing, the respondent was 77 years. The sentencing judge imposed a conviction on all counts but otherwise discharged the respondent without imposing any other penalty on condition that he enter into a bond in the sum of $1,000 to be of good behaviour for three years where the first year was to be subject to supervision by a community corrections officer. An intervention order was made prohibiting contact by the respondent with the complainants, their elder sister and mother. The Director appealed against sentence on the basis that the sentence imposed was manifestly inadequate. The Court held (refusing permission to appeal against sentence): 1. Whilst the sentence imposed by the sentencing judge was too low this is not an appropriate case in which to grant permission to appeal. -- 1 of 16 -- 2. The respondent ought not be twice vexed where, before the sentencing judge, counsel for the Director conceded that imposing a bond was within the judge’s sentencing discretion. This and the respondent’s age weigh against a grant of permission. Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Procedure Act 1921 (SA) ss 150 and 157; Sentencing Act 2017 (SA) ss 3, 4, 11, 40, 71 and 96; Statutes Amendment (Child Sex Offences) Act 2022 (SA), referred to. Adams (A pseudonym) v The Queen (2022) 141 SASR 204; CMB v Attorney-General (NSW) (2015) 256 CLR 346; Cumberland v The Queen (2020) 94 ALJR 656; Director of Public Prosecutions (DPP) (SA) v Jones [2021] SASCA 114; Everett v The Queen (1994) 181 CLR 295; Gassy v The Queen [2023] SASCA 90; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; House v The King (1936) 55 CLR 499; Klosowski v The Queen [2021] SASCA 85; Kuchar v The Queen (2019) 135 SASR 185; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Lee v Western Australia [2022] WASCA 137; Malvaso v The Queen (1989) 168 CLR 227; Munda v Western Australia (2013) 249 CLR 600; R v Butler (A pseudonym) [2022] SASCA 112; R v Buttigieg (2020) FLR 170; R v D (1997) 69 SASR 413; R v Doolan [2017] SASCFC 80; R v Dyett [2023] SASCA 41; R v Friesen [2020] 1 SCR 424; R v Hicks (1987) 45 SASR 270; R v Howlett; R v Myall; R v Holland (1997) 97 A Crim R 153; R v Hunter (1984) 36 SASR 101; R v Kelly [2023] SASCA 22; R v Kennedy [2012] SASFC 13; R v Kong (2013) 115 SASR 425; R v M, H (2007) 168 A Crim R 557; R v McIntyre (2020) 138 SASR 17; R v Marshall [2023] SASCA 105; R v MJJ; R v CJN (2013) 117 SASR 81; R v Monks (2019) 133 SASR 182; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Perry [2022] SASCA 127; R v RLP (2009) 213 A Crim R 461; R v Reiner (1974) 8 SASR 102; R v Skinner (2016) 126 SASR 120; R v Wilton (1981) 28 SASR 362; R v Yaroslavceff [2022] SASCA 123; Wanganeen v Dietman (No 2) (2021) 139 SASR 217; Warner v The Queen [2022] SASCA 142; Yardley v Betts (1979) 22 SASR 108, considered. -- 2 of 16 -- R v BEAUMONT [2023] SASCA 128 Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA THE COURT: Introduction 1 The Director of Public Prosecutions (SA) (the Director) seeks permission to appeal sentence pursuant to ss 150 and 157 of the Criminal Procedure Act 1921 (SA) (the CPA). 2 On 6 June 2023 the respondent pleaded guilty to three counts of indecent assault, contrary to s 56(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), and two counts of aggravated indecent assault, contrary to s 56(1)(d) of the CLCA which had occurred in 2019 and 2020. The maximum penalty for the indecent assault offending was imprisonment for eight years, and for the aggravated indecent assault offending, imprisonment for 10 years (as the complainant was under 14 years).1 3 The pleas on these five counts were accepted in satisfaction of all counts on the Information on the basis that the remaining three counts were to be treated as uncharged acts. The respondent qualified for a reduction of up to 10 per cent on account of his late pleas of guilty.2 4 At the time of sentence on 8 August 2023, the respondent was 77 years old with no relevant criminal history and the complainants were two sisters aged 15 and 13, the granddaughters of a friend of the respondent. The younger complainant has an intellectual disability. 5 The sentencing judge imposed a conviction on all counts but otherwise discharged the respondent without imposing any other penalty on condition that he enter into a bond in the sum of $1,000 to be of good behaviour for three years where the first year was to be subject to supervision by a community corrections officer. 6 The sentencing judge did not include as a condition in the bond that, in the event of breach, the respondent could be called up for sentence.3 An intervention order prohibiting contact by the respondent with the complainants, their elder sister and mother was made. 1 This maximum penalty from 1 October 2022 became 15 years as the result of the Statutes Amendment (Child Sex Offences) Act 2022 (SA). 2 Sentencing Act 2017 (SA) (the Sentencing Act), s 40(3) as then in force. 3 Sentencing Act, s 97(3). In the event of breach, the respondent will only be required to pay the sum of $1,000, see Wanganeen v Dietman (No 2) (2021) 139 SASR 217, [15]. -- 3 of 16 -- [2023] SASCA 128 The Court 2 Disposition of the application 7 For the reasons that follow, whilst the sentence was manifestly inadequate this is not an appropriate case in which to grant permission to appeal. The respondent ought not be twice vexed where, before the sentencing judge, counsel for the Director conceded that imposing a bond was within the judge’s sentencing discretion. This and the respondent’s age weigh against a grant of permission. 8 The application for permission to appeal sentence should be dismissed. The circumstances of the offending 9 The grandfather of the complainants lived opposite them and visited most days. The respondent often accompanied his friend on those visits. 10 At a Christmas party at the home of the complainants in 2019 the respondent approached the older complainant from behind, hugged her and squeezed her breast with his hand for around 20 seconds. She told the respondent to stop, and he said “okay”. The complainant told her mother. The respondent left the party. This was the factual basis for count 1. 11 In the first half of the following year, the respondent and a neighbour were standing at the front of the home of the complainants, talking. The younger complainant was present. Suddenly the respondent turned his attention to her and said words to the effect, “ooh boobies”, before reaching out and squeezing her left breast. The neighbour told the respondent they had to leave and took the complainant inside her home. This was the basis for count 2. 12 In the middle of 2020, the respondent visited the home of the complainants and the elder complainant walked from the kitchen into the hallway. As the respondent walked past her, he stopped and touched her on the side of her breast with his hand. His hand then swept upwards over her breast before he continued into the lounge. The complainant’s mother stopped the respondent and told him to leave the complainant alone. This was the basis for count 3. 13 Around the same time, the respondent again visited the home of the complainants and, as the elder complainant walked out of her bedroom, the respondent reached out and poked her breast with his finger. This formed the basis for count 4, which was uncharged. 14 Subsequently, the respondent visited the home of the complainants at the end of July 2020. They were sitting on a bed in a bedroom watching television. The elder sister of the two complainants saw the respondent walk into the bedroom, stand in front of the complainants, reach out and touch each of them on the breast with one hand. He quickly cupped their breasts before letting go. He walked out of the bedroom and went back into the lounge. This conduct formed the basis for counts 5 and 6 which were also uncharged. -- 4 of 16 -- [2023] SASCA 128 The Court 3 15 A few days later, the respondent again went to the home of the complainants. The elder complainant was in the kitchen preparing dinner for herself and the younger complainant. The respondent hugged her from behind and put his hand on her left breast, squeezing it. This conduct formed the basis for count 7. The complainant told the respondent that he was making her uncomfortable, and she asked him to stop. The respondent apologised and went into the lounge for dinner. 16 Following dinner, the elder complainant saw the younger get a drink out of an esky in the lounge. As she bent over, the respondent reached out and brushed his hand over her buttocks. He moved his hand back and forth a couple of times in a rubbing motion. This conduct formed the basis for count 8. The younger complainant then followed her older sister back to her bedroom. She was crying and told her older sister that the respondent had made her feel scared and upset. 17 The respondent was arrested on 3 May 2021. He declined to answer any questions. He was granted police bail that day. He has not expressed remorse. 18 The victim impact statements from the complainants describe them both being always worried and scared when in public because they might see the respondent. The thought of seeing him makes them feel sick. They have difficulties trusting people, as they trusted the respondent and he hurt them. The complainants’ mother described feeling stressed and concerned for the safety of her daughters and finding it hard to trust people. She worries about how the offending has affected her daughters. It has aggravated her pre-existing depression. She is both sad and furious about what happened. The circumstances of the offender 19 The respondent was born in Victoria and left high school after year 8. He then worked as a labourer before moving to Tasmania where he married. He undertook voluntary work for the CFS and the SES. 20 The respondent has lived in South Australia since the 1970s. His wife of 41 years died in 2020. 21 At the time of sentence, the respondent was 77 years with health problems including emphysema. His domestic partner and fiancé was aged 70 with an intellectual disability. The respondent acted as her carer and received a disability support allowance. 22 Medical evidence was tendered by the respondent for the purposes of sentence. Whilst scant, it addressed the numerous conditions from which the respondent’s fiancé suffered but did not provide detail as to the extent of her disability. The evidence also described the respondent’s chronic obstructive pulmonary disease but, here again, without detail. -- 5 of 16 -- [2023] SASCA 128 The Court 4 Principles relating to prosecution appeals 23 The Director instituted this appeal as of right pursuant to s 157(1)(a)(iii) of the CPA. That right is conditioned on the grant of permission by this Court; the scope of the discretion is circumscribed by the purpose for its grant. The Director must do more than simply demonstrate error of a kind recognised by House v The King.4 He must demonstrate that the circumstances are rare and exceptional.5 24 Indeed, it will generally be necessary for the prosecution to point to the need for this Court’s intervention so as to determine a matter of sentencing principle, or to correct an error of principle, or to otherwise establish or maintain adequate sentencing standards. Other recognised bases for intervention include the necessity to correct idiosyncratic views of particular judges about sentencing for particular crimes, or to correct a sentence which is so manifestly inadequate that it not only amounts to an error of principle but has the capacity to undermine public confidence in the administration of justice.6 25 Nonetheless, because double jeopardy considerations are relevant to the question of permission to appeal, the attitude of the prosecution as revealed by its conduct of the sentencing hearing is also relevant. In R v Wilton the prosecution did not object to the suspension of a sentence of imprisonment but then sought permission to appeal against the order for suspension. King CJ said:7 In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge’s discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General. 26 This approach was approved by Deane and McHugh JJ in Malvaso v The Queen. After referring to this passage, their Honours said:8 The position is a fortiori in a case such as the present where the prosecution has, consistently with its approach at first instance, not sought to appeal against, or to question the appropriateness of, an order suspending any sentence of imprisonment. 4 House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ). 5 Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [8]-[21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, [1]-[2] (French CJ, Crennan and Kiefel JJ); CMB v Attorney-General (NSW) (2015) 256 CLR 346, [54]-[56] (Kiefel, Bell and Keane JJ) and Cumberland v The Queen (2020) 94 ALJR 656, [4]-[6], [33]. 6 R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ); R v Yaroslavceff [2022] SASCA 123 and R v Dyett [2023] SASCA 41. 7 R v Wilton (1981) 28 SASR 362, 368 (King CJ). 8 Malvaso v The Queen (1989) 168 CLR 227, 240 (Deane and McHugh JJ). -- 6 of 16 -- [2023] SASCA 128 The Court 5 27 This attitude, they said, “militates against the order being overridden on an appeal by the Attorney-General against sentence”. 28 The majority in Malvaso v The Queen also regarded the conduct of the prosecution at the sentence hearing as relevant, though it could not dictate what course was taken by the sentencing judge, or by the appeal court were permission to appeal to be given:9 The prosecution's bargain to stand mute when a suspended sentence was sought on behalf of the applicant was carried into effect and the prosecution was thus compromised in its presentation of the arguments which might otherwise have led the learned sentencing judge to impose a sentence against which the Attorney-General would not have sought leave to appeal. That is not to say that the agreement between the prosecuting authorities and the applicant affected the duty either of the sentencing judge or of the Court of Criminal Appeal (if leave to appeal were given) to impose the sentence which appeared appropriate to the Court in the circumstances. The Court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement. Nor can such an agreement bind the Attorney-General not to exercise his statutory power to seek leave to appeal and to appeal in any case where, in his opinion, the proper administration of criminal justice requires that power to be exercised. Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceedings before the sentencing judge and the course of proceedings is relevant to the order which should be made on the Attorney-General’s application for leave to appeal, the Court may have regard to those circumstances in determining whether leave to appeal should be given. 29 Subsequently, in Everett v The Queen the High Court again approved the approach taken in R v Wilton where King CJ had said:10 It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R v Tait and Bartley by ‘double jeopardy’. In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge’s discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General. 30 In Everett v The Queen the High Court explained that where the relevant order was proposed before the sentencing judge, but the prosecution refrained from submitting that the order would be inappropriate and not within a proper exercise 9 Malvaso v The Queen (1989) 168 CLR 227, 233 (Mason CJ, Brennan and Gaudron JJ). 10 R v Wilton (1981) 28 SASR 362, 368 (King CJ), Everett v The Queen (1994) 181 CLR 295, 302 (Brennan, Deane, Dawson and Gaudron JJ). -- 7 of 16 -- [2023] SASCA 128 The Court 6 of the sentencing discretion then, generally speaking, permission to appeal against sentence should not be granted to attack the order. Alternatively, permission should only be granted “in a restricted form” where there are other grounds which properly attract a grant of permission.11 31 This approach has been consistently applied in South Australia.12 Nonetheless, in R v Nemer the Court of Criminal Appeal decided, by a majority, to grant permission to appeal even though the approach taken on appeal represented a shift from the approach taken by the prosecution before the sentencing judge.13 Although in the minority, Doyle CJ explained the approach required of the appeal court:14 In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest: Malvaso v The Queen (1989) 168 CLR 227 at 233. … The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court: R v Malvaso (1989) 50 SASR 503 at 509-510 King CJ. The court must make its own decision, acting according to law and in the public interest. … But sometimes the manner in which the prosecution has conducted itself in the sentencing proceedings will have an effect on the conduct of those proceedings such that it would be unfair to allow the prosecution to change its approach on appeal. The court must always be mindful of considerations of fairness arising out of the manner in which the hearing is conducted. Likewise, the manner in which the prosecution has put its case may be a factor in deciding whether to grant leave to the Director to appeal. … Ultimately the court must act according to law, and having regard to the public interest, and sometimes the court will grant leave to appeal, even though the Director seeks leave to appeal with a view to putting a submission contrary to the submission put by the Director to the sentencing judge. But it remains a relevant consideration that this is what the Director seeks to do. 32 Whether and to what extent the approach taken by the Director before this Court represents a shift in approach from that taken before the sentencing judge must be considered. If there has been a shift that is a factor relevant to whether permission to appeal sentence should be granted. 11 Everett v The Queen (1994) 181 CLR 295, 303 (Brennan, Deane, Dawson and Gaudron JJ). 12 See, for example, R v Howlett; R v Myall; R v Holland (1997) 97 A Crim R 153, 160-165 (Bleby J); R v Kennedy [2012] SASFC 13, [15] (Doyle CJ). 13 R v Nemer (2003) 87 SASR 168. 14 R v Nemer (2003) 87 SASR 168, [28]-[32] (Doyle CJ). -- 8 of 16 -- [2023] SASCA 128 The Court 7 33 Similarly, the appeal court must exercise particular care where the defendant has already been released and the effect of the Director’s case on appeal is to require imprisonment.15 In that setting principles of double jeopardy become acute for there is a particular harshness associated with incarcerating a defendant who has been “free in the community”.16 The appeal court should be reluctant to interfere.17 As King CJ explained in R v Hicks:18 When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating. 34 In Green v The Queen the High Court warned: “the guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual”.19 The submissions of the Director 35 The Director contended that when one had regard to the circumstances of the offending, including the adverse consequences for the complainants and their family, as well as the respondent’s personal circumstances, nothing short of a sentence of imprisonment was appropriate. 36 In the submission of the Director, only a sentence of imprisonment would appropriately serve the primary and secondary purposes of sentencing.20 A conviction coupled with a bond failed to vindicate the dignity of each complainant, failed to express the community’s disapproval of the offending, and failed to afford such protection as the court could provide to vulnerable children against the repetition of sexual assault.21 37 Relying upon R v Friesen,22 the Director emphasised the necessity to give due weight to general deterrence, the personal autonomy and integrity of each complainant and the risk of reasonably foreseeable harm which may be suffered by each complainant in the future. In particular, the Director argued that there was no necessary correlation between the extent of the respondent’s physical interference and touching – which he described as “sexual violence” – and the degree of psychological harm that might be suffered by each complainant as a result. The Director highlighted, amongst other passages, the following passage in R v Friesen:23 15 R v Buttigieg (2020) 352 FLR 170, [60]-[63] (Lovell J, with whom Kourakis CJ and Nicholson J agreed). See also R v Kelly [2023] SASCA 22, [48]-[49] (Lovell JA), [99] (Bleby and David JJA). 16 R v Kong (2013) 115 SASR 425, [102]-[103]. 17 R v M, H (2007) 168 A Crim R 557, [18] (Gray J, with whom Duggan and White JJ agreed). 18 R v Hicks (1987) 45 SASR 270, 273 (King CJ). 19 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, 479-480 [43] (French CJ, Crennan and Kiefel JJ). 20 Sentencing Act, ss 3 and 4. 21 Munda v Western Australia (2013) 249 CLR 600, [54] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ). 22 R v Friesen [2020] 1 SCR 424. 23 R v Friesen [2020] 1 SCR 424, [144]. -- 9 of 16 -- [2023] SASCA 128 The Court 8 Specifically, we would strongly caution courts against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation. There is no basis to assume, as some courts appear to have done, that sexual touching without penetration can be [TRANSLATION] “relatively benign” (see R. v. Caron Barrette, 2018 QCCA 516, 46 C.R. (7th) 400, at paras. 93-94). Some decisions also appear to justify a lower sentence by labeling the conduct as merely sexual touching without any analysis of the harm to the victim (see Caron Barrette, at paras. 93-94; Hood, at para. 150; R. v. Iron, 2005 SKCA 84, 269 Sask.R. 51, at para. 12). Implicit in these decisions is the belief that conduct that is unfortunately referred to as “fondling” or [TRANSLATION] “caressing” is inherently less harmful than other forms of sexual violence (see Hood, at para. 150; Caron Barrette, at para. 93). This is a myth that must be rejected (Benedet, at pp. 299 and 314; Wright, at p. 57). Simply stating that the offence involved sexual touching rather than penetration does not provide any meaningful insight into the harm that the child suffered from the sexual violence. 38 The Director submitted that the complainants were entitled to move about their home free from sexual violence. They had, he submitted, been treated as “sexual objects” by a respondent who had neither explained his offending nor expressed remorse for it. The Director was particularly critical about the paucity of medical evidence offered in support of the claimed hardship to the respondent and his fiancé associated with incarceration.24 39 In these circumstances, the Director submitted that it was simply not open to the sentencing judge to be satisfied that “good reason” existed to proceed with a bond under s 97(1) of the Sentencing Act once the full range of sentencing considerations were properly taken into account.25 The submissions of the respondent 40 The respondent contended that there was no error in the exercise of the sentencing discretion, and no defect justifying appellate intervention had been shown. The penalty was, it was submitted, not so manifestly inadequate that the public conscience would be shocked if the appeal court did not intervene. 41 The respondent emphasised the circumstances in which his pleas were made. The matter was defended and listed for trial as part of the Port Augusta circuit. On 6 June 2023 a special directions hearing was called on, during which intimations were given by the prosecution and the sentencing judge that a bond was within the available sentencing range. It was only after these intimations were given that the respondent determined to plead guilty. The respondent submitted: It seems unfair to now criticise the sentencing judge and the process when the resolution was said at the time to be in the interests of both complainants… A negotiated resolution without a child giving evidence was in everyone’s interests. 42 It was submitted, without evidence, that the respondent operated on a level of intellectual functioning that is “not on par with the average adult”. It was 24 Adams (A pseudonym) v The Queen (2022) 141 SASR 204 (Livesey P, Doyle and Bleby JJA). 25 R v Skinner (2016) 126 SASR 120. -- 10 of 16 -- [2023] SASCA 128 The Court 9 pointed out that immediately following sentence on 8 August 2023 the respondent wished the sentencing judge “a very good year, a Merry Christmas and a happy new year for next year”.26 43 The respondent, it was said, sought but was refused funding from the Legal Services Commission to incur the cost of expert evidence to address his ill health, his psychological functioning and the need to care for his fiancé. It was submitted that the submissions in mitigation proceeded on the best information that was available at the time. 44 The respondent submitted that permission should be refused given that the offending was at the lower end of the scale. The respondent submitted that, were he sentenced to an immediate custodial term, he would be regarded as a “serious repeat offender” because he has committed on at least two separate occasions a “serious sexual offence” against a person under the age of 14 years. 45 Moreover, because the offending involved a “serious sexual offence”, no suspension of that sentence of imprisonment would be available.27 Similarly, a home detention order could not be made because the offending involved a “prescribed serious sexual offence” that did not occur in prescribed circumstances.28 46 The respondent contended that the imposition of a bond was appropriate given that incarceration would operate harshly where he had no relevant criminal record and his personal circumstances and advanced age warranted leniency. The determination of the application for permission 47 The considerations addressed in R v Friesen accord with those identified by the Court of Criminal Appeal in R v D,29 as well as subsequently over the last 25 years.30 48 It is appropriate to reflect on the approach taken to cases involving the sexual abuse of children. Quite apart from the penalties to be imposed, the studies and research referred to in R v Friesen, as well as the findings made by the Royal 26 Sentencing Remarks, The King v Beaumont (District Court of South Australia, DCCRM-22-389, Auxiliary Judge Barrett, 8 August 2023), 6. 27 Sentencing Act, s 96(3)(ba). 28 Sentencing Act, s 71(2)(b)(ii)(A). 29 R v D (1997) 69 SASR 413, 423-424 (Doyle CJ). 30 See, for example, R v MJJ; R v CJN (2013) 117 SASR 81, [84] (Kourakis CJ, with whom Vanstone J agreed); R v McIntyre (2020) 138 SASR 17, [58]-[60] (Doyle J, with whom Stanley and Hughes JJ agreed); R v Stain [2021] SASCA 70; R v Amos [2021] SASCA 126, [36]; Warner v The Queen [2022] SASCA 142, [76]-[79] (Livesey P), [118]-[123] (Doyle JA). See also R v MJR (2002) 54 NSWLR 368, [57] (Mason P); R v King [2009] NSWCCA 117, [40]-[41] (McClelland CJ at CL, with whom Grove and Howie JJ agreed). See, most recently, R v Lian [2023] SASCA 122, [99] (Kourakis CJ, with whom Lovell and Doyle JJA agreed). -- 11 of 16 -- [2023] SASCA 128 The Court 10 Commission into Institutional Responses to Child Sexual Abuse,31 demonstrate that a number of assumptions often made require care if not reconsideration. These include assumptions to the effect that children may not be at significant risk of psychological harm where the offending does not involve what might be thought more serious, invasive physical contact by an offender. For example, in R v Friesen the Supreme Court warned:32 … The type of physical act can be a relevant factor to determine the degree of physical interference. However, courts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale (see R. v. R.W.V., 2012 BCCA 290, 323 B.C.A.C. 285, at paras. 19 and 33). This is an error — there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. As the Ontario Court of Appeal recognized in Stuckless (2019), physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration (paras. 68-69 and 124-25). Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. For instance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than an act of fellatio, cunnilingus, or penetration. 49 In addition, there is a need to take stock of and revise the language used in cases such as these. As the Court in R v Friesen explained, “sentencing is a communicative process, the language that sentencing judges use matters”:33 Finally, we would recommend that courts cease to use terms such as “fondling” or “caressing” when referring to sexual violence against children. Because sentencing is a communicative process, the language that sentencing judges use matters. Using words like “fondling” or “caressing” in the sentencing context implicitly characterizes the offender’s conduct as erotic or affectionate, instead of as an inherently violent assault, as courts have recognized. Such language is misleading and risks normalizing the very conduct the sentencing judge is meant to condemn. Use of such language undermines Parliament’s objective of communicating that the use of children as sexual objects for the gratification of adults is wrongful. Instead of acknowledging the harm done to victims, such language re-victimizes victims by disguising and obscuring the violence, pain, and trauma that they experienced (see M. Lessard and S. Zaccour, “Quel genre de droit? Autopsie du sexisme dans la langue juridique” (2017), 47 R.D.U.S. 227, at pp. 241-42). 50 As important as these considerations are, and will continue to be, it is necessary for this Court to consider all relevant circumstances when undertaking its independent review of the record of a case in connection with any sentence appeal. The appeal court must review the sentence having regard to the applicable sentencing principles and standards, taking as its starting point the findings made and remarks given by the sentencing judge. 31 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) Preface and Executive Summary, 15-17. See also the references recently made to the Criminal Justice Report in R v Marshall [2023] SASCA 105. 32 R v Friesen [2020] 1 SCR 424, [146]. 33 R v Friesen [2020] 1 SCR 424, [147]. -- 12 of 16 -- [2023] SASCA 128 The Court 11 51 Sentencing for serious offending is difficult.34 The sentencing court must address the defendant, the victims and the community, arriving at a penalty that is in accord with recognised principles and sentencing standards. It is difficult to neatly and simply encapsulate the relevant considerations in remarks that can be understood by those to whom they must be directed. Appeal courts have cautioned against over-long sentencing remarks and,35 because a sentence is discretionary, there can never be any one “correct” sentence. As well, few sentences will be welcomed by all concerned. 52 The paramount consideration when sentencing is to protect the safety of the community.36 There are usually other relevant considerations. Secondary purposes include ensuring punishment, to publicly denounce and deter offending, and to recognise the harm done to the victim and to the community.37 As has been recognised, the relevant sentencing considerations do not usually point in the same direction and often point in different directions. Some time ago it was said that “every court sentence should primarily be surveyed in the light of one test: is that the best thing to do in the interest of the community? – always remembering, of course, that the convicted person, despite his wrongdoing, remains a member of the community”.38 53 The protection of the safety of the community can however also be served by rehabilitation and the imposition of a sentence which, whilst operating as a deterrent to others, recognises the need to properly reflect on a defendant’s capacity to make a worthwhile contribution to the community of which the defendant remains a member:39 But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilized nations. 54 In this case a review of the sentence cannot fairly be made without reference to the circumstances in which the respondent entered his pleas of guilty. 55 During the course of the special directions hearing, the prosecutor said: “I just flag for your Honour that it is within your discretion to impose a bond”. Counsel then outlined the terms of a potential resolution, including an intervention order satisfactory to the complainants and their family.40 34 Klosowski v The Queen [2021] SASCA 85, [71]-[72] (Kelly P and Livesey JA). 35 R v Reiner (1974) 8 SASR 102, 114 (Wells J); Lee v Western Australia [2022] WASCA 137, [51]-[55]; Gassy v The Queen [2023] SASCA 90, [18]. 36 Sentencing Act, s 3. 37 Sentencing Act, s 4. 38 Edmund Davies J, (1963) 19 The Magistrate 183. 39 Yardley v Betts (1979) 22 SASR 108, 112-113 (King CJ, with whom Mitchell and Legoe JJ agreed). 40 Transcript of Proceedings, The King v Beaumont (District Court of South Australia, DCCRM-22-389, Auxiliary Judge Barrett, 6 June 2023), 4. -- 13 of 16 -- [2023] SASCA 128 The Court 12 56 Defence counsel then said that this was helpful, and she sought time to speak with her client. She sought “an intimation” and the sentencing judge then said: “In the light of what the prosecution says I probably would be amenable”.41 57 In context, this remark can only have been understood as a reference to the sentencing judge being amenable to imposing a bond by way of penalty following the submission of the prosecutor that this course was within the available range for the purposes of exercising the sentencing discretion. The matter was then adjourned for over five hours, after which at 5.03 pm counsel for the respondent announced that the matter had resolved. 58 The matter was adjourned to a later circuit hearing when submissions on sentence were made. After pleas were entered, counsel for the prosecution submitted that “an immediate custodial penalty is required”.42 She maintained that, absent further detail, requisite hardship had not been established.43 59 In the course of his sentencing remarks the sentencing judge reviewed what he described as “serious and mitigating aspects” to the respondent’s offending, as follows:44 There are serious and mitigating aspects to your offending. The serious aspects are these. There were two victims not one. One of the two victims has an intellectual disability, something that you must have been perfectly well aware of. You persisted in the offending when warned off several times. You have expressed no real remorse. I suspect you have little insight into the effect on the girls of your behaviour. On the mitigating side, the types of assault, the types of indecent assault were towards the lower end of seriousness, even allowing for the fact that one sort of offending takes the aggravated form because of MV’s disability. 60 The sentencing judge made it clear that he found the imposition of sentence difficult, it was “not … an easy task at all”, and it was not without “great hesitation” that he proceeded to impose a bond.45 61 One of the difficult aspects associated with determining sentence in this case concerned the advanced age of the respondent. Whilst it is, as the Director submitted, true that the respondent was a mature man whom one would expect should know better, s 11(1)(f) of the Sentencing Act requires the sentencing court to have regard to a defendant’s age when sentencing. A sentencing judge cannot 41 Transcript of Proceedings, The King v Beaumont (District Court of South Australia, DCCRM-22-389, Auxiliary Judge Barrett, 6 June 2023), 5. 42 Transcript of Proceedings, The King v Beaumont (District Court of South Australia, DCCRM-22-389, Auxiliary Judge Barrett, 3 August 2023), 3. 43 Transcript of Proceedings, The King v Beaumont (District Court of South Australia, DCCRM-22-389, Auxiliary Judge Barrett, 3 August 2023), 14. 44 Sentencing Remarks, The King v Beaumont (District Court of South Australia, DCCRM-22-389, Auxiliary Judge Barrett, 8 August 2023), 3. 45 Sentencing Remarks, The King v Beaumont (District Court of South Australia, DCCRM-22-389, Auxiliary Judge Barrett, 8 August 2023), 3-4. -- 14 of 16 -- [2023] SASCA 128 The Court 13 overlook the fact that each year of sentence for a defendant of advanced age represents “a substantial proportion of the period of life” left to that defendant.46 62 Another difficult aspect of the sentencing exercise in this case concerned the intellectual functioning of the respondent, quite apart from the paucity of detail put before the sentencing judge about the respondent’s ill health and the disability of his fiancé. Whilst cogent evidence on matters such as these is generally preferable, this case provides an illustration of the difficulties that can sometimes confront a defendant who wishes to adduce evidence in support of submissions made in mitigation. The effect of the submissions and material was clear enough, and the sentencing judge was not constrained by the need for evidence to support all of the matters which were made the subject of submissions in mitigation. By s 12 of the Sentencing Act, the sentencing court is not bound by the rules of evidence and may inform itself on matters as it thinks fit. 63 The sentencing judge was told that the respondent’s fiancé had problems with depression, dementia, deafness, a hiatus hernia and an amputated toe and that the respondent was required to care for his fiancé. 64 More importantly still, the sentencing judge was told that the respondent operated on a level of intellectual functioning that is “not on par with the average adult”. If some form of intellectual disability had been properly established by expert evidence, that might conceivably have operated as a powerful reason to refrain from incarcerating the respondent.47 It might have also helped to explain the respondent’s brazen and bewildering conduct, as well as why the sentencing judge thought he lacked insight into his offending. 65 It is important, as a matter of both fairness and justice, to review the sentence which was imposed having regard to the way in which the sentence hearing was conducted before the sentencing judge. Absent clear evidence on a range of matters it was necessary for the sentencing judge to address what he was presented with on circuit as best he could. In this case the sentence which was imposed is explained by the conduct of the sentencing hearing on circuit. 66 It is well-recognised that the discretion to impose a bond cannot be exercised in a vacuum and without regard to appropriate sentencing principles including, in an appropriate case, the need to impose strongly deterrent sentences.48 The offending in this case was serious. It was both persistent and opportunistic. It persisted even after the respondent was warned. 67 The gratuitous sexual abuse of children is not tolerated by the community. Offending of this kind carries with it the risk of serious ongoing harm. A strongly 46 R v Hunter (1984) 36 SASR 101, 103 (King CJ, with whom White J agreed); see also R v RLP (2009) 213 A Crim R 461, [39]. 47 R v Doolan [2017] SASCFC 80; R v Monks (2019) 133 SASR 182; Kuchar v The Queen (2019) 135 SASR 185; Director of Public Prosecutions (DPP) (SA) v Jones [2021] SASCA 114; R v Perry [2022] SASCA 127. 48 R v Butler (A pseudonym) [2022] SASCA 112, [70] (David JA and Mazza AJA). -- 15 of 16 -- [2023] SASCA 128 The Court 14 deterrent sentence will usually be required. It may therefore be accepted that the ordinary sentence will involve recording a conviction, together with the imposition of a sentence of imprisonment. 68 In that sense, the sentence in this case is too low. However, it was also necessary for the sentencing judge to impose a sentence which was proportionate to both the offending and the offender. The offending in this case, whilst serious, was not as grave as is sometimes seen by this Court. It was necessary for the sentencing judge to evaluate and balance the factors personal to the respondent, even in the absence of evidence. There was no suggestion that the respondent had engaged in any similar conduct with others, and the intervention order was likely to protect the complainants and their family from any risk of further harm from the respondent. 69 As well, though the intimation of the prosecutor did not bind the sentencing court, and though it was submitted that incarceration was required, it was never suggested that a bond for this 77-year-old respondent went beyond the proper scope of the judge’s sentencing discretion. It is in these circumstances clear that the approach now taken by the Director on this application for permission to appeal sentence represents a marked shift from that which was taken before the sentencing judge. That shift is relevant to whether permission should be granted. It is an important factor weighing against the grant of permission to appeal. Conclusion 70 In the particular circumstances of this case, the Director has not demonstrated that it is necessary for this Court to intervene. 71 Whilst the sentence is manifestly inadequate, it is not so low as to justify intervention and outweigh considerations associated with double jeopardy. The respondent is now nearly 78 years. It is not appropriate to grant permission to appeal sentence for the purpose of exposing him to immediate imprisonment. 72 The application for permission to appeal should be dismissed. -- 16 of 16 --