Justice For All Australians

To decide whether the sentence in the present case is excessive, it is first necessary to consider the approach

that should be taken to sentencing under s74(7). That is the provision under which the judge sentenced the

Counsel for the Director of Public Prosecutions made the point that under this provision the maximum sentence is imprisonment for life. She argued that in the present case that was in truth the maximum against which the punishment for the appellant was to be fixed. Her argument was that the court had before it not just two or three representative counts, but in effect multiple counts

which attracted respectively maximum sentences of 8 years' and 7 years' imprisonment. She submitted that when one adds up the maximum sentences which the individual offences attracted, the total was such that the court was in reality in the present case contemplating imprisonment for life as the relevant maximum. Thus, she did not deny that the statutory maxima fixed for the particular offences committed were relevant. Her point was that a distinction was to be drawn between a case in which a court sentences for, say, three so-called representative counts, while taking into account the fact that those three offences are part of a continuing course of conduct, and a case under s74 where the court is in fact sentencing for all of the components of the course of conduct.

If that submission is accepted it means that a sentence imposed under s74 is likely to be heavier than a sentence for the same course of conduct if the offender is convicted on a number of counts charged under particular sections

of the Act , but sentenced on the basis that those counts are part of a course of conduct involving similar behaviour.

In that context counsel referred to the well known distinction between the procedure to be adopted when it is desired that offences not charged should be taken into account, and the distinct practice of considering the commission of

In effect, as I understand her submission, it was the submission of counsel for the Director that all offences that are part of the course of conduct were to be taken into account, and that the relevant maximum punishment is arrived

On the other hand, counsel for the appellant argued that s74(7) did not authorise or require the court to depart from the approach that it takes when sentencing a person for what are often called representative counts. The term

The process of sentencing for a limited number of offences, on the basis that they are part of a wider course of conduct, has been regarded by this court in the past as enabling the court adequately to take account of the seriousness of a course of conduct as a whole. The practice is well established.

Does s74(7) have the effect that the sentence imposed under that provision would normally be heavier than it would be under the existing practice, because, as with sentences actually taken into account, the available maximum has increased?

In my opinion the terms of s74 suggest that it is a provision concerned with certain procedural difficulties presented by cases involving multiple sexual offences against children. In such cases it is often difficult to identify the separate offences with sufficient particularity, in terms of time and circumstance, to meet the usual requirement of the law that adequate particulars be given. Subsection (4) is directed at that very problem.

laid under s74.

There is nothing in the terms of s74 , apart from subsection (7), to suggest that Parliament intended that the courts should change the approach that they have taken when sentencing in respect of a course of conduct. The terms of

subsection (7), and the reference to life imprisonment in particular, are explicable on the basis that some of the sexual offences with which s74 deals attract life imprisonment.

One would not expect a provision, which appears to be directed at what might be called procedural problems, to be intended to require a new approach to sentencing. If the Director's submission is accepted, it would seem to follow

that a person charged with three separate offences, and sentenced on the basis that they were part of a course of conduct involving similar behaviour, might well receive a lesser penalty than a person charged with persistent sexual abuse in respect of the same course of conduct. Of course, in subsection (7) Parliament has referred to "... a term of imprisonment proportionate to the seriousness of the offender's conduct ...". But, in the context of s74 , I incline to the view that that is a reference to the seriousness of the conduct as it would be assessed by the court if so-called

The view which I favour gets some support from the Second Reading Speech on the amendment that introduced s74. In the course of that speech (Hansard, House of Assembly, 4 May 1994, p1005) the Minister said that the amendment was introduced to deal with the problem of adequacy of particulars "... where the allegations involve a long period of multiple offending." It is proper to have regard to the speech to identify the purpose for which the law was changed,

Of course, the words of s74(7) remain. As counsel for the Director pointed out, a person convicted under HYPERLINK "http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s74.html" s74 is convicted on a charge which "...subsumes all sexual offences committed by the same person against the same child during the period of the alleged sexual abuse ...": HYPERLINK "http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s74.html" s74(8). There is an obvious analogy to the process of taking uncharged offences into account.

Nevertheless, for the reasons that I have indicated, I have come to the conclusion that the reference in subsection (7) to the "seriousness of the offender's conduct" should be taken as a reference to the seriousness of that conduct as it would have been assessed by the court, in accordance with current practice, when dealing with distinct offences that are punished on the basis that they are part of a course of conduct involving like offences. Inshort, I do not consider that s74 has brought about a change in the approach to the sentencing of offenders in such cases.

In my opinion, the approach to be taken under s74 , in a case like the present one, is this. The court should identify the different offences involved and the maximum punishment that they attract. In the present case the offences are unlawful sexual intercourse with a child above the age of twelve years, that attracts a maximum punishment of 7 years' imprisonment, and indecent assault on a child above the age of twelve years, that attracts a maximum punishment of 8 years' imprisonment. It is not necessary to identify the number of offences committed with any precision, although

if that can be done readily, there is no reason why it should not be done. An approach which requires one to identify the number of offences with precision, would simply reintroduce the very problem at which s74 is aimed. It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences,

as distinct from under s74 , and on the basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct.

In this way, the court will still have regard to the duration of the offending, the seriousness of the offences involved, and the frequency of the offending. But the court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima.

Of course, a person sentenced under s74 is protected against further charges in respect of the same child and the same period of offending: HYPERLINK "http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s74.html" s74(9). But, in practical terms, a person sentenced on an information alleging a number of representative counts had the same protection. In my experience it is unheard of for such a person to be charged later with further like offences in respect of the same period. Such a charge might well be stayed as an abuse of the court's process.

Having said all that, I should add that I do not consider it appropriate to, nor am I attempting to, establish exhaustive guidelines for the imposition of sentences under s74. I have confined myself to the particular issue that arises in this case. That is, whether one is to accumulate the statutory maximum penalties applicable to each offence which can be identified as having occurred during the relevant period.

There may be other difficulties that will emerge under s74. All I intend to decide at this stage is that the seriousness of the offender's conduct is encompassed by sentencing the offender as if the offender were convicted on what are called representative counts, under the practice that existed before HYPERLINK "http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s74.html" s74 was enacted.