Gale v R

Ground 1 - error in assessment of objective seriousness as mid-range

1. Section 73 provides for an offence of having sexual intercourse with a person aged between 16 and 18 who is under the offender's "special care". If the victim is aged 16, the maximum penalty is 8 years' imprisonment: s 73(1). If the victim is aged 17, the maximum penalty is 4 years: s 73(2).
2. The section has been the subject of several amendments in recent years. It was in the following form (relevantly) at the time of the applicant's offending: 73 Sexual intercourse with child between 16 and 18 under special care … (2) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 17 years and under the age of 18 years, is liable to imprisonment for 4 years. (3) For the purposes of this section, a person (the victim) is under the special care of another person (the offender) if, and only if: … (b) the offender is a member of the teaching staff of the school at which the victim is a student, or (c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or …
3. The "member of the teaching staff" provision in s 73(3)(b) did not apply because the applicant was not a teacher at the victim's school at the time of the offending. The charges to which the applicant pleaded guilty averred that the victim was "being provided tuition" by the applicant. It was accepted that the charges invoked the s 73(3)(c) basis for the victim being under the applicant's special care. [12]

The judge's assessment of objective seriousness

1. The judge found that the offences were "within the lower end of the mid-range of seriousness for matters contemplated by s 73(2) of the Crimes Act". He referred to the following factors: [13] * The fact that the victim was consenting was not relevant. The section contemplates consensual sexual activity. If she was not consenting the applicant would have been facing a more serious charge. * There was no manipulation or pressure. * The age range for the victim of a s 73(2) offence is 12 months (17 years of age). Given this limited age range, the fact the victim was towards the upper end of it was of "very little significance". * Various types of intercourse contemplated by the definition in s 61H of the Crimes Act occurred on each of the occasions the subject of a charge. The offending specifically related to penile/vaginal intercourse. * The acts occurred within an ongoing and utterly inappropriate relationship over a period of two to three months.

Submissions

1. The applicant made three points in support of the first ground: 1. The judge erred in attaching "very little significance" to the victim's age within the range contemplated by s 73(2). 2. The conduct giving rise to the instant offending is "arguably" no longer a criminal offence. 3. The judge erred by taking into account a teacher-student relationship.
2. Turning to the first of these, it was submitted that the judge had overlooked two important matters relating to the age ranges in s 73. First, if an offence occurred when the victim was 16, the applicable maximum penalty would have been double (8 years). Second, if it occurred when she was 18 it would not have been an offence at all. This meant that proximity to the victim's 18th birthday was a matter of real significance. The victim was aged 17 years and 9 or 10 months at the time of the subject offending. [14]
3. Counsel's second point that the conduct is "arguably" no longer an offence was said to be because s 73(3)(c) was amended to add the words "under the authority of the offender" by the Crimes Amendment (Special Care Offences) Act 2020 (NSW) with effect from 23 June 2020. [15] Effective from that date, for the victim to be under the special care of the applicant, it would need to be proved that he had: "an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, in which relationship the victim is under the authority of the offender". (Emphasis added.)
4. The applicant referred to the Attorney General's Second Reading Speech in which he spoke of a concern: [16] "to provide greater clarity and certainty about which relationship types are captured to ensure that young people in relationships with adults that involve a power imbalance due to the adult's position of authority relative to the young person are suitably protected; and that innocent, consensual relationships between young people who are over the age of consent and adults who may be only a few years older than the young person, which do not involve a power disparity due to the adult's position of authority relative to the young person, are not criminalised."
5. Section 61H provides definitions, including that for the purposes of Pt 3 Div 10 of the Crimes Act (which includes s 73), "a person is under the authority of another person if the person is in the care, or under the supervision or authority of the other person".
6. The applicant contended that if it be accepted that the subject conduct would not be captured by s 73 as it now stands, then the offending must be placed at the very lower end of the scale of objective seriousness. [17]
7. This second aspect of the applicant's argument in support of the first ground is problematic in that it is based upon a change in the law post-sentencing. Counsel conceded at the hearing that the appeal is concerned with error and there could be no error attributed to the sentencing judge based upon a subsequent change in the law. [18]
8. It appears the point counsel was endeavouring to make in relation to the change in the legislation was not as broad as indicated in the written submissions. Rather, in oral submissions, counsel merely used the amendment to highlight an issue about whether the victim was under the offender's authority. Prior to the amendment, the offence could be established regardless of whether the victim was under the offender's authority. An offence which did not involve being under the offender's authority would be less serious than if the victim was. [19]
9. The applicant submitted that the victim in the present case "arguably was not in the care of or under the supervision or authority of the applicant in the way that those words are ordinarily understood". [20] Counsel referred to the following points of distinction: * The ongoing contact was initiated by the victim and was entirely voluntary. The applicant had no control over whether, and how often, the victim gave him schoolwork to review, nor what work she gave him. * The applicant had no control over, or interest in, any action which the victim took in response to his feedback. * While the applicant held a position of trust, that did not mean the victim was under the applicant's authority as those two concepts are distinct: MRW v R [2011] NSWCCA 260 at [77] (Bathurst CJ). * The victim approached the applicant in an informal capacity to obtain assistance with her HSC studies. She also discussed personal matters with him.
10. Finally, counsel argued that the judge was in error in taking into account a teacher-student relationship in his assessment of the seriousness of the offence, whereas the special care relationship in this case was an established personal relationship in connection with the provision of instruction to the victim. [21] The applicant's relationship with the victim had progressed beyond a teacher-student relationship to something more personal and it endured after she had turned 18. (Although it seems to have been assumed that the sexual contact continued after her birthday, there was nothing explicit in the evidence about this. However, nothing seems to turn on that.)
11. Counsel sought to support this proposition by emphasising that the offences occurred in the context of what the applicant described to the author of the SAR as "a long-term relationship". Counsel distinguished this from "a one-off episode where the [offender] takes advantage of the victim". [22] The point of all of this was that while the relationship between the pair was, initially, clearly one of teacher and student, that had ended well before the offending occurred. [23]

Consideration

1. The assessment of the objective seriousness of an offence is quintessentially a matter for sentencing judges: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ), [46] (Simpson J). Further, as the Crown pointed out [24] , there are challenges that confront an applicant for leave to appeal who asserts that insufficient or inadequate weight has been given to some particular feature on sentence: Carr v R [2020] NSWCCA 214 at [45]-[49].
2. The applicant's first point about the age of the victim being at the upper end of the age range covered by s 73(2) has no merit. It is true that if the incidents occurred when the victim was age 16 the maximum penalty would have been twice as much. It is also true that if they occurred when the victim was aged 18 there would be no criminal offence. That does not mean that there is a sliding scale of seriousness of offences committed against 17-year-olds from most serious to least serious as the victims approach their 18th birthday.
3. Sexual offences against children usually include an age range being specified in the offence-making provision. It has been said in many cases that the point in the range where the age of the child victim fell is a factor relevant to the seriousness of the offence: for example, R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 at [42]-[43]; PWB v R [2011] NSWCCA 84; (2011) 216 A Crim R 305 at [11]. The fact that it is an element of the offence that the victim was within a specified age range does not prevent the actual age within the range being taken into account in an assessment of the seriousness of the offence; doing so does not involve double counting: Shannon v R [2006] NSWCCA 39 at [28]; RJA v R [2008] NSWCCA 137; 185 A Crim R 178 at [13]. However, cases in which these issues have been discussed have involved offences which include broader age ranges than the narrow 12-month periods in s 73(1) and (2). No authority was drawn to the Court's attention, and there are none of which I am aware, in which it has been held that similar reasoning applies where the statutory provision specifies a range of age as narrow as 12 months.
4. There was no evidence about the actual level of maturity or agency of the victim in this case and so this issue is left to be considered as a general proposition. It is difficult to conceive of the offences being measurably more serious if they occurred when the victim was 17 years and 1 month, as opposed to when she was 17 years and 11 months. The sentencing judge was correct to regard where the victim fell in the age range covered by the offence as being of "very little significance".
5. It may be accepted that the vulnerability of the victim is an important factor in offences against s 73. However, the offence is also concerned with the exploitation by an adult of the special care relationship. Sexual intercourse with a person aged 16 or 17 in the absence of such a relationship is not an offence.
6. The applicant's characterisation of the offending as being in the context of a long-term relationship as opposed to a "one-off" episode does not support this ground of appeal. It serves to emphasise that the offending was not an isolated aberration but representative of repeated exploitation of a vulnerable young person in a special care relationship.
7. The criticism of the trial judge for referring to a teacher-student relationship is also unfounded. This is not a point that was raised by counsel who appeared for the applicant in the District Court. It has no merit in any event. The broad basis of the relationship was one derived from the applicant being a teacher and the victim being his student. Characterising the victim as the one who initiated ongoing contact is not apt either when it was the applicant who made a point of letting his students know they could continue to contact him for advice and assistance after his transfer to another school.
8. Counsel expressed some uncertainty at the hearing as to whether she had adequately explained the "under authority" point derived from the post-sentencing amendment to s 73 [25] , but if I have correctly understood it I am not persuaded that it has any force. The first point to note is that there was no suggestion raised in the District Court about the victim not being under the authority of the applicant in the sense of being in his care of or under his supervision or authority. Counsel made careful and quite detailed submissions about matters pertinent to the objective seriousness of the offending and this was not one of them.
9. More significantly, however, regardless of whether the victim was under the applicant's authority, there were enough circumstances attending the applicant's offending to amply justify the finding the judge made about the level of objective seriousness. They included that the victim had been a student at the school at which the applicant taught for almost five years by the time he transferred to another school. She had been a pupil in classes he taught for the immediate past two years. He invited her, and her fellow students to continue contact with him if they needed assistance with their schoolwork, an opportunity the victim took advantage of. In this way, the foundation for the continued contact between the applicant and the victim was based on him being a teacher, or tutor, and her being a school student seeking assistance with her studies.
10. The applicant accepted that he occupied a position of trust. [26] Dr Seidler reported that he "was able to reflect on the inappropriateness of his actions and the way in which he abused the power his position in relation to the victim afforded him". Compounding these features, there was the concession by counsel in the District Court that "the most concerning aspect of the offending would be the age disparity". [27] The applicant, at age 40, was more than twice the victim's age of 17.
11. The judge's assessment of the objective seriousness of the offences was one that was open to be made. There was no error. This ground fails.

Ground 2 - manifest excess

1. The principles relating to a ground of appeal asserting manifest excess in sentencing are well known and need not be repeated: see, for example, Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
2. The submissions for the applicant in relation to this ground persisted with claims that the offending was not as serious as the sentencing judge assessed because of the 2020 legislative amendments. [28] It is unnecessary to say more about that.
3. The applicant criticised the judge for concluding that "there is a need for a significant aspect of general deterrence". Part of that criticism was based upon his Honour quoting from the Attorney General's Second Reading Speech for the Justice Legislation Amendment Bill 2018 which he said, "amply demonstrated" the need for general deterrence. Whether the passage from the speech was apt or not, having regard to the features of the offending reviewed above, the judge's finding was perfectly appropriate.
4. The applicant submitted that it was "notable" that a lesser sentence was imposed upon the offender in R v Howes [2000] VSCA 159; (2000) 116 A Crim R 249. That is beside the point. R v Howes is a 20-year-old case from another jurisdiction where the offence in question had a lower maximum penalty (3 years). [29] No other cases were cited; nor was it submitted that there was any particular sentencing range which should have constrained the exercise of sentencing discretion.
5. The applicant accepted that a degree of (notional) accumulation of the indicative sentences was appropriate but submitted that what in fact occurred was "a significant degree of accumulation". Counsel analysed that "the aggregate sentence is just over 71% of the quantum [of] the two indicative sentences". Such an analysis is unhelpful. Where there were indicative sentences of 13 months and 15 months and the aggregate sentence is 20 months, and it is conceded that a degree of partial accumulation was appropriate, it is difficult to see error in the exercise of discretion in this respect.
6. The offences constituted an egregious breach of the position of trust the applicant himself acknowledged he held in relation to the victim. As a mature adult who well knew the inappropriateness of his conduct but persisted with it over a significant period, it is unsurprising that terms of imprisonment were imposed. In fact, there was little choice about that matter; counsel conceded in the District Court that because the offences were within the definition of a "prescribed sexual offence," an intensive correction order as an alternative to fulltime imprisonment was not available. [30] Imposition of some other type of sentence such as a community correction order would have been entirely inappropriate.
7. The terms assessed by the sentencing judge were proportionate to a finding of objective seriousness that was well open to have been made. They were appropriately tempered by the various findings that were made in the applicant's favour. The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) were required to be addressed. They included that the offender should be made accountable for his actions and that others tempted to offend in this way should be deterred by knowing that significant punishment will be imposed.
8. The aggregate sentence imposed upon the applicant is not manifestly excessive.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.

Endnotes

1. Remarks on sentence (ROS) [28].
2. ROS [30]-[31]; [62]-[64].
3. ROS [32]-[33].
4. ROS [40]-[45].
5. ROS [46]; [62]-[64].
6. ROS [57]-[59].
7. ROS [61].
8. ROS [65]-[81].
9. ROS [90].
10. ROS [91]; [97].
11. ROS [101].
12. Brendan Royce Gale, 'Submissions on Behalf of the Offender', Submission in R v Gale, 2019/00002532, 10 March 2020, [2.3] (AB 92).
13. ROS [24]-[25].
14. Brendan Royce Gale, 'Grounds of Appeal Against Sentence and Submissions in Support on Behalf of the Applicant', Submission in Gale v R, 2019/2532, 30 September 2020, [26]-[27] (AWS).
15. AWS [28].
16. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 June 2020 at 45-46.
17. AWS [38].
18. Tcpt 2 December 2020, p 11(6).
19. Tcpt 2 December 2020, p 10(1); p 11(41); p 12(4); p 13(6).
20. AWS [34]-[36].
21. Tcpt 2 December 2020, pp 3(42) - 9(27).
22. Tcpt 2 December 2020, p 7(42); p 9(15).
23. Tcpt 2 December 2020, p 8(3).
24. Crown, 'Crown Submissions', Submission in Gale v R, 2019/00002532, 23 November 2020 [24] (CWS).
25. Tcpt 2 December 2020, pp 10(16), 10(32), 11(30).
26. AWS [37].
27. Tcpt 13 March 2020, p 5(6) (AB 126).
28. AWS [40].
29. R v Howes at [22].
30. Brendan Royce Gale, 'Submissions on Behalf of the Offender', Submission in R v Gale, 2019/00002532, 10 March 2020, [1.4]; Crimes (Sentencing Procedure) Act 1999 (NSW) s 67(1)(b). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 19 February 2021