Counsel: MS L KLEINIG - Solicitors: DIRECTOR PUBLIC PROSECUTIONS (SA)

Judgment No. [2001] SASC 50

On Appeal from THE MAGISTRATES COURT, MR V K PATRICK SM

[2001] SASC 50

1 GRAY J. This is an appeal against a sentence imposed by a magistrate.

2 The appellant, Shane Rudolph Bekker was charged on Information that:

"During the 1997 AFL Finals Season he indecently assaulted JH, a person aged 6 years.

A charge of unlawful sexual intercourse, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) was dismissed.

3 A plea of guilty was entered on 25 July 1999 before the learned magistrate Mr Patrick SM ("the magistrate"). A pre-sentence report from the Sexual Offender Treatment and Assessment Program ("SOTAP") was ordered.

4 On 2 November 2000 a victim impact statement was tendered and submissions made by prosecution and defence counsel. The magistrate imprisoned the appellant for twenty months and fixed a non-parole period of four months. He declined to suspend the sentence.

5 The appellant complains that the sentence was manifestly excessive and based upon incorrect principles.

6 The complainant was six years old. She accompanied her father on a visit to the appellant's home. The purpose of the visit was to watch the Australian Football League grand final on television. The appellant was her father's friend. The offence occurred whilst the complainant's father was watching television. The appellant took the complainant to his bedroom to show her the view of Glenelg. Whilst there, he placed his hand down her underwear and touched her on the outside of her vagina.

7 The complainant told her father about the incident about twelve months later. He, in turn, reported the matter to the pastor of the local church, where both the appellant and the complainant's family attended. The pastor confronted the appellant with the allegations. The appellant admitted the offence. The incident was then reported to the police. The appellant co-operated fully.

8 A victim impact statement written by the complainant's mother was tendered. The statement outlined the effects that the offence had on the complainant and her family. The statement disclosed that the complainant was troubled by any incident that reminded her of the appellant. Her family also ceased attending their church to avoid contact with the appellant. The statement provided:

" [the complainant] is very embarrassed about what has happened to her. She is very wary of men, she has had nightmares at times. Any man with the name of Shane she has difficulty with for example last year her teachers first name was Shane and she was very reluctant to have him, she didn't want to go to school at times as it reminded her of him. I had to keep reassuring her that her teacher was ok.

[the complainant's] sleeping habits have changed.

[the complainant] can no longer go to the church where her friends are as Bekker still goes there and some of her friends functions are at the church.

[the complainant's father] can no longer go to the church he went to as Bekker is still in the church and [the complainant's father] can't handle seeing him, [the complainant's father] can no longer mix with his friends as they are still mixing with Bekker ..."

9 The prosecution did not allege any prior offending by the appellant. It was accepted that the offence was not part of a course of conduct or a pattern of offending. The prosecution submitted that the offence was aggravated by a breach of trust and necessarily warranted a period of imprisonment. It was said that the issue of suspension was a matter for the magistrate's discretion.

10 The magistrate referred to the SOTAP[2] report. Ms Dowling, a clinical psychologist provided a summary and opinion as follows:

"Mr. Bekker was referred to SOTAP by Detective Alan Buckler of Christies Beach CIB in March 1999. He has been subsequently attending the unit as a voluntary client. Mr. Bekker has completed both the Phase I and Phase II components of the SOTAP program but has been requested to repeat Phase II. When attending SOTAP Mr Bekker has been found to be a cooperative and compliant client who endeavours to be open about his offending behaviour.

Mr Bekker has made some treatment advances but has found it difficult to acknowledge and accept that there is a risk that he may reoffend. Mr Bekker has frequently asserted that he will not reoffend. Mr Bekker reported that he now knows his limits in terms of how much contact he can have with children and that his faith in God will help him to maintain an offence free lifestyle. It is of some concern that Mr Bekker reported that his faith will enable him to maintain an offence free lifestyle because he has been unable to explain his current offence in light of the fact that his faith in God has always been strong and that he came to offend despite this. Due to Mr Bekker denying that there is a risk of reoffending he has further asserted that he does not need to engage in lifestyle changes that would help to reduce his risk. This is particularly concerning given his acknowledgement that since his recent offence he has continued to associate with adults who have children, and that there have been occasions when he has experienced sexual arousal while engaging in physical contact with children.

In my opinion, Mr. Bekker requires further long term and intensive professional intervention, as is offered at SOTAP. It is hoped that with continued treatment he will be able to develop a better understanding of his offending behaviour and the preventative strategies required to maintain an offence free lifestyle. Therefore, I recommend that Mr Bekker be permitted to continue in treatment. However, if the courts choose to impose a custodial sentence then I recommend that an adequate parole period be considered so that treatment can be implemented through SOTAP when he is released."

11 Counsel submitted that the appellant was ashamed of his actions. He was contrite and apologetic to the victim and her family. He had done everything possible to rehabilitate himself. He had been counselled by members of his church. He had voluntarily attended the SOTAP program. He had purchased books from the Christian Book shop to assist him in understanding his offending. He was prepared to continue with treatment as recommended by SOTAP.

12 At the time of the offence, the appellant was aged thirty one years. He was born in Adelaide and completed his schooling to year eleven. He lived at St Marys and was casually employed by Mitsubishi. He had the support of his family. They were aware of the offence. His interests included computer-aided design, sound and light production and music within his church.

13 In substance, the appellant's submission was that the interests of justice would best be served by a suspended sentence. Such a sentence would enable his treatment to be continued. It was suggested that an immediate custodial term would be disastrous as it would impede rehabilitation and result in the loss of employment. It was said that the offence occurred on the spur of the moment and had not been accompanied by threat or other pressure. Character references were also placed before the magistrate. References from the pastor of the church, another church member, a friend and from employers were supportive of the appellant.

14 The magistrate provided detailed sentencing remarks. Those remarks demonstrate a careful consideration of all of the circumstances surrounding the offence; its effects on the complainant and her family, the SOTAP report, the materials submitted by the appellant and the submissions made on his behalf.

The magistrate referred to a number of recent authorities of this court which dealt with indecent assaults.[3]

He particularly emphasised Beattie v The Police.[4]

In this case, King CJ said with the agreement of Perry and Duggan JJ:

"... the protection of young children against persons who are minded to commit this type of offence against them must be the paramount consideration for the sentencing judge and this court.

The community properly looks to the courts to do what the courts can to protect children against this kind of abuse. I think that that consideration is the answer to the arguments put ... in favour of the suspension of the sentence."

However, these remarks were made during an appeal against sentence for six crimes of indecent assault on young boys aged between nine and twelve years.

Reduction for Plea of Guilty and Co-operation with the Authorities

15 The appellant submitted that an insufficient allowance had been made for his plea of guilty and his co-operation with the authorities. It was said that a reduction in the order of twenty five per cent should have been made by the magistrate.

16 Section 10 of The Criminal Law (Sentencing) Act 1988 (SA) provides:

"(1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:

(g) if the defendant has pleaded guilty to the charge of the offence

(h) the degree to which the defendant has co-operated in the

The magistrate made a reduction for the plea of guilty. However, he made no express reference to the appellant's co-operation in the investigation of the offence. He said:

"I give the defendant credit for a plea of guilty. What, had circumstances been otherwise, would have compelled a 2 year term of imprisonment, I reduce to a period of 20 months following a conviction."

17 It was submitted that the appellant's plea of guilty was accompanied by genuine contrition. The plea was made at the earliest opportunity. These factors greatly assisted the investigating authorities. They prevented the complainant from being exposed to the stress of trial preparation and the giving of evidence. A successful prosecution may have been difficult in the absence of the appellant's co-operation, given the time between incident and complaint.

18 It was submitted by the Crown that the range of reduction for a plea of guilty was between fifteen and twenty five percent. It was acknowledged that the magistrate's allowance was at the lower end of the range. However, it was said that the reduction was within the magistrate's discretion. Attention was drawn to the remarks of the High Court in House v The King[5]. In Dinsdale v R[6] the High Court said as follows:

"The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R ((1936) 55 CLR 499 at 505):

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

19 Discounts of twenty five per cent are common in cases where an early plea of guilty is made - Nixon v R[7], R v Allen[8] and R v Kendall[9]. Spigelman CJ speaking for the New South Wales Court of Criminal Appeal in R v Thomson[10] reviewed the practice throughout Australia. He concluded that an appropriate range is from ten to twenty five percent. He said:

"The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.

There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.

The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.

It is also pertinent to state that a discount of 10-25 per cent is not a range within which trial judges may exercise a discretion that will not be subject to appellate review. Appeals against severity or leniency of sentence focus on the range which is appropriate for the particular case, not on the range appropriate for pleas in the full variety of circumstances"

20 In my view, the magistrate erred in failing to give sufficient weight to the appellant's plea and his co-operation. He was contrite, admitted the offence and followed the authorities' recommendation about treatment. His admission, plea and co-operation came out at the earliest opportunity after the complaint.

21 The Criminal Law (Sentencing) Act 1988 (SA) provides as follows:

"10 (1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

" 7 (1) Subject to subsection (2), the prosecutor must, for the purpose of assisting a court to determine sentence for an offence, furnish the court with particulars (that are reasonably ascertainable and not already before the court in evidence or a pre-sentence report) of -

(a) injury, loss or damage resulting from the offence;

"7A (1) A person who has suffered injury, loss or damage resulting from an indictable offence committed by another may furnish the trial court with a written personal statement (a 'victim impact statement') about the impact of that injury, loss or damage on the person and his or her family.

"3(1) In this Act, unless the contrary intention appears ... 'injury', in relation to an offence, includes pregnancy, mental injury, shock, fear, grief, distress or embarrassment resulting from the offence."

Victim is not defined by the legislation. R v Birmingham (No.2)[11] was decided prior to the introduction of s. 7A, however a broad view of the word was taken. More recently, Bleby J considered the meaning of victim in Marchant v Police[12].

"It is said that the magistrate erred in allowing the victim impact statements to be read, in that they were not victims for the purposes of the Act. I reject that submission. Section 7A(1) of the Criminal Law (Sentencing) Act 1988 entitles 'a person who has suffered injury, loss or damage resulting from an indictable offence' to furnish a victim impact statement. Section 3 of the Act defines 'injury' for the purposes of the act as including 'pregnancy, mental injury, shock, fear, grief, distress or embarrassment resulting from the offence.'"

22 In sentencing, the magistrate took account of the victim impact statement. It was submitted that in doing so, he had regard to extraneous matters. The victim impact statement was made by the complainant's mother on behalf of the complainant. No objection was taken to this course. However, it disclosed that the offence had brought back memories of sexual abuse that the complainant's mother had suffered as a child. She said:

"I have had a lot of difficulty with it as well as it has brought back memories in my own life of the sexual abuse that happened to me as a child ..."

As a result, the complainant's mother underwent treatment and counselling. There was no suggestion that the complainant herself needed any form of treatment as a result of the offence.

23 In his reasons the magistrate made the following remarks:

"... I made reference to the Victim Impact Statement. I have read that document today and the fact that I do not mention every passage in it should not be misunderstood as an omission on my part. I have taken the terms of the entire document into account.

It is relevant to note that the victim has expressed a number of wishes. Mainly to inform the court of the effect of the crime. There is no claim for compensation sought. The victim acknowledges there was no physical injury nor treatment required either in the past or the future.

... I also take into account the concerns expressed by the victim's mother. This, unfortunately, has revived her own personal difficulty and reference is made to experiences and one can well imagine that there has been a need to seek professional counselling from a practitioner who has been brought into the family's troubles.

There has been, in short, an impact and distress on all the members of the family, including the victim, which must be taken into account.

In dealing with these matters I am of the view that the appropriate sentence following conviction (the matter is far too serious, whether viewed in terms of the category of offending or the circumstances or the consequences for the victim and the family, to consider anything but a conviction) and, in my view, like considerations compel that a period of imprisonment be imposed."

24 In the circumstances, I consider that the magistrate erred in having regard to the particular difficulties suffered by the complainant's mother. I consider these matters cannot fairly be said to have resulted from the offence. The magistrate could have regard to those effects which could generally have been expected to be suffered by the complainant and her family. However, the complainant's mother's particular background falls into a different category. The magistrate should not have had regard to these matters. These conclusions are supported by Reg v Thomson Holidays Ltd.[13] Lawton LJ said:

"Whenever the making of an order for compensation is appropriate, the court must ask itself whether loss or damage can fairly be said to have resulted to anyone from the offence for which the accused has been convicted or which has been taken into consideration."

These remarks were approved by Kerr LJ in R v Reilly[14] and Lord Scarman in R v Cain[15]. The South Australian Court of Criminal Appeal agreed in DPP (Cth) v Hopwood & Byrnes[16]

"It is beyond question, as was said in R v Birmingham (No.2) (Perry J 2 October 1997, S 6390, unreported), that, in reviewing any 'injury, loss or damage' resulting from an offence, a narrow or confined meaning is not to be attributed to these words.

The published authorities make it plain that the words employed are used in a broad, colloquial sense; and not as definitive technical expressions. As the Court of Appeal said in R v Thomson Holidays Ltd. [1974] 1 AllER 823 at 829, it was never, for example, intended to introduce into the criminal law 'the concepts of causation which apply to the assessment of damages under the law of contract and tort'. That type of approach was also adopted by the Court of Appeal in R v Reilly [1982] 3 AllER 27 at 34. A broad, common sense, practical overview is clearly required (Rowlston v Kenny (1982) 4 Crim App R (S) 85 at 87)."

As the issue of reasonable foreseeability was not raised directly, there is no need to consider the discussion in R v Agius[17]

25 An additional error occurred when the magistrate took account of the victim impact statement. The complainant's mother said:

"[The complainant] has said that she would like him to go to jail, [the complainant's sister] and myself and [the complainant's father] would also like this to occur so that he doesn't touch another child again."

The magistrate accepted and acted upon the entire content of the victim impact statement. This included the views that the appellant should serve a period of imprisonment. I consider that it is undesirable for the magistrate to have considered the views of the victim's family about sentencing. Debelle J in Drohan v Police[18]

"Before sentencing the appellant the magistrate had adjourned the matter to enable the victims of the offence to attend before the court. I make no criticism at all of that practice. There are obvious advantages in it. It makes the defendant confront those who are the victims of the crime. However, the magistrate went a little further. She invited each of the two victims to express their view as to the appropriate penalty. Both said they believed that the appellant should serve a period of imprisonment. I think it was undesirable for the magistrate to invite the victims to express a view as to penalty. Victims not skilled in the sentencing process will not usually have regard to all of the factors bearing upon the proper exercise of the sentencing discretion. The fact that the magistrate invited those views raises the question whether the magistrate believed it was necessary to impose a period of imprisonment because that view had been expressed by the victims. The magistrate should not invite the victims to express views as to penalty."

These remarks are apposite. The magistrate allowed extraneous factors to intrude upon his sentencing discretion.

26 As a result of the errors identified, it is necessary for this court to set aside the sentence imposed by the magistrate. It follows, that I do not have to consider the second ground of appeal - that the penalty was manifestly excessive.

27 In my view, the magistrate erred in failing to make an adequate reduction of sentence on account of the appellant's plea of guilty and his co-operation with the authorities. I consider in the circumstances, that an allowance of sixteen and a half percent was manifestly inadequate and that an allowance of twenty five percent should have been made. I am also of the view that the magistrate erred in having regard to extraneous information. That information was the problems suffered by complainant's mother because of her own childhood experiences and her resulting need for counselling and treatment. In my view, these matters cannot fairly be said to have resulted from the appellant's offence. They should have received no weight. The magistrate also incorrectly took account of the complainant's family's views about sentence as having some relevance.

28 I propose to re-sentence the appellant. In all of the circumstances I consider that a term of imprisonment is appropriate, particularly as the offence was directed towards a young child. I order a term of imprisonment of fifteen months. I have discounted the term that I would otherwise have ordered (twenty months) by twenty five percent for the early plea of guilty and the co-operation with the authorities. I fix a non parole period of six months.

29 1Counsel for the appellant argued that a suspended sentence is a very real punishment. As was said by Bray J In Elliott vHarris (No.2)[19]:

"So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment."

30 It was submitted that imprisonment is an option of last resort. In Ienco v Kraft[20] Olsson J held that the:

"whole tenor of the [Criminal Law (Sentencing) Act 1988 (SA)] is that primary emphasis ought to be given to rehabilitation, where the evidence indicates that this may be facilitated consistently with preserving a proper balancing of other community interests such as deterrence and adequate punishment for wrongdoing".

In Daly v Police[21] Martin J considered that the magistrate had failed to apply the principle that a sentence of imprisonment was a sentencing strategy of last resort. Similarly, in G v Police[22] Perry J held that long established principles in the Criminal Law (Sentencing) Act 1988 (SA) oblige the court to have recourse to a custodial term of imprisonment only as a last resort, after other options have been considered and rejected. He said at (170):

"General deterrence must, of course, always play its part. But there will be cases where the question of general deterrence will yield to personal factors or other matters which might amount to a good reason to suspend."

General and personal deterrence are important factors in sentencing. There is also a need to balance the deterrent purpose of punishment with the aims of rehabilitation.

31 The sentence imposed must be consistent with both the aims of community protection and the reclaiming of an individual who has lapsed into wrong doing. In Vartzokas v Zanker[23] King CJ considered that:

"Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. ... The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. ... It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person."

32 The remarks of Walters in Wood v Samuels[24] were approved by the Court of Criminal Appeal in The Queen v Kruger[25]. They are of assistance

"Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court's clemency.

Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided. Apart from the matters which are specifically mentioned in s. 4(2) of the Offenders Probation Act and to which a court must necessarily direct its attention before deciding that a sentence of imprisonment ought to be suspended, the considerations governing the choice between a custodial sentence and a suspended sentence cannot be identified by any constant ratio. The factors to be taken into account must invariably be different in the particular circumstances of each particular case."

33 The Crown did not oppose an order of suspension. It was left as a matter for the discretion of the court.

34 The appellant is a first offender. He has made genuine efforts to rehabilitate himself. He followed the recommendation of the authorities and entered into a course of treatment with SOTAP. He has been undergoing treatment through that program for more than two years. A further SOTAP report[26] provided that:

"Mr Bekker was advised that he would need to continue to access the SOTAP program to enable him to gain a better understanding of his offending and how to avoid a relapse in his behaviour. Following discussion with Mr Bekker, an agreement was reached whereby he would repeat the SOTAP program from Phase I. Mr Bekker reported being much more motivated to learn from the program than he had been in previous groups and that he was now prepared to acknowledge that his faith in God would not necessarily be enough to prevent future offending behaviour.

Mr Bekker began a Phase I group therapy program on the 19th December 2000. Since this time he has attended six out of seven group therapy sessions. For the seventh session he was able to provide a valid reason for his non-attendance. In the sessions that he has attended he has been an active group member who has given every indication that he is motivated to comply with the agenda of the session.

It is recommended that Mr Bekker be allowed to continue with the treatment program that he has begun in light of the fact that Mr Bekker now appears to be more motivated to comply with treatment suggestions and requests that have been made of him."

35 I consider that two additional factors are of particular relevance to the question of suspension. The appellant has the support of his family and his church. There is a substantial body of opinion that he is (other than this offence) of good character.

36 I consider that in the above circumstances, the appellant's sentence of imprisonment should be suspended. The terms of the bond will include provisions designed to assist his ongoing rehabilitation.

2 the sentence imposed by the magistrate is set aside

3 the appellant is to be imprisoned for fifteen calendar months

5 the sentence of imprisonment is suspended on the appellant entering into a bond in the following terms:

2. That the appellant be under the supervision of a community corrections officer for a period of 3 years and obey the lawful directions given by the community corrections officer to whom the appellant is assigned for the purposes of supervision and in particular any directions as to the undertaking of assessment, courses and treatment as recommended by the Sexual Offenders Treatment Assessment Program and also as to undertaking any medical or

psychological counselling or treatment as may be recommended.

3. (a) That the appellant shall not associate with or attempt to associate with any child under the age of 12 years.

(b) That the appellant shall not be in the company of a child under the age of 12 years or remain on any premises occupied by a child under the age of 12 years unless that child is in the company of an adult.

(c) That the appellant shall not attend at or approach within 100 metres of any school, kindergarten or child care centre.

4. That the appellant perform 104 hours of community service within 6 months from the date of this bond, and obey the lawful directions of the community corrections officer to whom he is assigned for the purposes of community service.

5. That the appellant report, within two working days of having signed this bond, at the offices of the Department for Correctional Services at 895 South Road, Clarence Gardens

(NOTE: The appellant need not report, if within that two day period, he receives

notice from the Department that it is not necessary to do so.)

JUDGMENT CITATIONS - LISTED AS THEY APPEAR IN THE JUDGMENT

1 Section 56 provides: "A person who indecently assaults another shall be guilty of an offence and liable to be imprisoned for a term not exceeding eight years or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.

4 1992-93) 169 LSJS 268

5 (1936) 55 CLR 499 at 505

6 [2000] HCA 54; (2000) 175 ALR 315 at [3]

7 (1992-93) 66 A Crim R 83 at 90

8 [1999] SASC 346

10 [2000] NSWCCA 309; (1999-2000) 49 NSWLR 383 at 418

11 (1997) 69 SASR 502

12 [2000] SASC 100 at 3

13 [1974] QB 592 at 599

14 [1982] 3 All ER 27 at 33

15 [1984] 2 All ER 737 at 742

17 (2000) 210 LSJS 47

18 14 June 2000 [2000] SASC 207

19 (1976) 13 SASR 516 at (527)

20 (1988-90) 53 SASR 40 at 44-45

21 8 April 1999 [1999] SASC 143

22 [1999] SASC 216; (1999) 74 SASR 165

23 [1989] SASC 1591; (1988-89) 51 SASR 277 at 279

25 (1974) 8 SASR 465 at 468-469

26 17 SASR 214 at 221

Section 56 provides: "A person who indecently assaults another shall be guilty of an offence and liable to be imprisoned for a term not exceeding eight years or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years."

[3] Powell v The South Australian Police S5733

[4] (1992-93) 169 LSJS 268

[5] (1936) 55 CLR 499 at 505

[6] [2000] HCA 54; (2000) 175 ALR 315 at [3]

[7] (1992-93) 66 A Crim R 83 at 90

[8] [1999] SASC 346

[10] [2000] NSWCCA 309; (1999-2000) 49 NSWLR 383 at 418

[11] (1997) 69 SASR 502

[12] [2000] SASC 100 at 3

[13] [1974] QB 592 at 599

[14] [1982] 3 All ER 27 at 33

[15] [1984] 2 All ER 737 at 742

[17] (2000) 210 LSJS 47

[18] [2000] SASC 207

[19] (1976) 13 SASR 516 at (527)

[20] (1988-90) 53 SASR 40 at 44-45

[21] [1999] SASC 143

[22] [1999] SASC 216; (1999) 74 SASR 165

[23] [1989] SASC 1591; (1988-89) 51 SASR 277 at 279

[24] (1974) 8 SASR 465 at 468-469

[25] 17 SASR 214 at 221