The King v Lian [2023] SASCA 122 (10 November 2023)
The facts.
This was a Crown appeal against sentence. The respondent had pleaded guilty to one count of maintaining an unlawful sexual relationship with a child. The offending occurred between July 2019 and September 2020. The respondent was aged 24 and the child was aged 14 when the offending started and 15 when it ceased. As a result of the offending the child became pregnant and gave birth to a daughter in June of 2020. Both the respondent and the child were members of a Myanmar Christian community and met in the course of church activities. The offending comprised penile/vaginal sexual intercourse.
The sentencing judge accepted that the respondent had first believed the child to be aged 17, but later learned she was 14. The sentencing judge also accepted that the respondent had not been aware of the legal age of consent in Australia. The trial judge conducted her own research and discovered that the age of consent in Myanmar is 14. At the time of sentence, the respondent was aged 27. He had no criminal history.
The sentencing judge started imposed a head sentence of one year and 18 days with a non-parole period of five months. The court of appeal decided that the sentence was manifestly inadequate and re-sentenced the respondent to imprisonment for five years with a non-parole period of two years and six months.
The harm caused by child sexual abuse.
The importance of the judgment in Lian is difficult to overstate. The Chief Justice annexed to the judgment as Appendix A an extract from the Canadian case of The Queen v Friesen a judgment of the Supreme Court of Canada. The extract recites the remarks of that court on the harm that sexual abuse does to children, to families, to communities and to society. The Chief Justice linked the remarks of King CJ in R v Williams (1990) 53 SASR directly to the Canadian case in that the Canadian case is to the same effect as Williams where King CJ said:
The law which prohibits sexual intercourse with young girls exists in order to protect young girls from their own inclinations, until they have reached a sufficient degree of maturity in life to make sensible and responsible decisions as to their own lives. It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advantage of the sexual inclinations of young girls.
The Chief Justice also annexed as Appendix B extracts from volume 3 of the 2017 Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. His Honour had this to say about that report.
I have also attached as Appendix B extracted findings of the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse on the impact of sexual offending on children with which all sentencing judicial officers make themselves familiar. I encourage all sentencing judges to familiarise themselves with the content of those materials.
The judgment also peremptorily dismisses some of the recurrent themes which may sometimes be pressed upon sentencing judges. The sentencing judge’s remarks that the respondent and the child were in ‘a loving relationship’ drew this response from the Chief Justice:
Contrary to the Judge’s characterisation… there was every reason to doubt that the relationship was a loving one. The relationship was the product of the criminal abuse of a child by an adult from its inception to its termination. … The term ‘loving’ … can have little or no sentencing significance in a case of sexual offending against children. Its use glosses over the very criminality of the offence of which the offender has been convicted. It should be avoided.
Protection from all types of sexual predators is owed to children, not just those offenders who fit the description of ‘paedophile’.
The sentencing judge had remarked that the respondent was ‘not a paedophile’, had no sexual interest in children and had not developed ‘criminal habits’. The Chief Justice remarked that:
…the need for general deterrence in order to protect children is not limited to paedophiles. It is not limited to offenders who have developed criminal habits. It applies to all persons who commit sexual offences against children.
The exercise of the discretion as to penalty by a sentencing judge...
The Chief Justice addressed the sentencing judge’s assertion in her judgment that she was acting according to the guidance of her conscience:
The judge expressly departed from a reasoned application of legal principle and preferred the guidance of her Honour’s own conscience. …The sentence imposed by the judge is manifestly inadequate and egregiously so. It was…idiosyncratic in the sense that it was the product of a personal view unanchored in any sentencing principle.
Justice Lovell gave a separate and concurring judgment, as did Justice Doyle. Justice Lovell concluded his judgment with the following remarks:
The task of sentencing prisoners is a difficult aspect of a judicial officer’s obligations. Ordering an offender to serve a period of custody can be, and often is, a profoundly confronting task. So much can be accepted. Personal views about the sentencing process cannot displace the obligation to provide relevant legal sentencing principles. Sentencing involves the exercise of a discretion. But it is a discretion to be exercised between legally available alternatives.