Reasons
19The sole ground of appeal is that the sentence for the second count was manifestly excessive.
20A claim of manifest excess requires the applicant to establish that the sentences imposed were unreasonable or plainly unjust, having regard to the principles that there is no single "correct" sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v R [2000] HCA 54; 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58]-[59]. Whether a sentence is manifestly excessive is a conclusion. It is not necessary to identify any particular error in the process; it is the examination of the result that leads to the conclusion.
21Nonetheless it can be helpful to ascertain why and how the sentence was arrived at since this inquiry may explain the conclusion and expose the reason for any manifest excess.
22Mr Crawford-Fish, who appeared on behalf of the applicant, challenged her Honour's assessment of the objective seriousness of the offending as being towards the lower end but not at the lowest end. He relied on two matters in support of his contention that the sentencing judge erred in the assessment with respect to the second count:
(1) The sentencing judge found that the applicant, as the victim's employer, was in a position of power over her and that this amounted to an aggravating circumstance.
(2) The sentencing judge found that the applicant completely disregarded the victim's protestations.
23Mr Crawford-Fish relied on the victim's attendance at work on days subsequent to the first of the applicant's inappropriate remarks and the conduct that comprised the first count. He contended that her conduct showed that she had a choice whether to attend work and that she chose to do so. He subsequently retreated from the submission but considered that her subsequent attendance showed that the disparity in power between the applicant and the victim was not as substantial as her Honour had adjudged it to be. I do not accept this submission.
24First, this Court is reluctant to disturb the sentencing judge's assessment of objective seriousness of the offending conduct: see the authorities referred to in Kaminic v R [2014] NSWCCA 116 at [46]-[47] per Fullerton J, Ward JA agreeing. Secondly, I do not discern any error in her Honour's assessment in the present case, either in the context of (1) above, or at all. Section 21A(2)(k) of the Crimes (Sentencing Procedure) Act provides that an offender's abuse of authority over a victim is an aggravating circumstance that is to be taken into account on sentence. Although the victim may have had a choice whether to attend work after the applicant had first behaved inappropriately towards her, she was obviously in need of money and was subject to a financial imperative to support herself while she was studying. Furthermore, she may have believed that her firm rebuffs had had the desired effect and that the applicant would respect her rejection of his advances. Abuse of authority by the offender, as employer, is not neutralised by the victim reporting for work after the first instance of abuse.
25Mr Crawford-Fish submitted that it was not correct to say, as her Honour did, that the applicant completely disregarded her protestations when her Honour went on to say that he desisted on the first occasion when she raised her voice and on the second occasion when she physically pulled away. He also relied on the circumstance that the applicant drove the victim home after his commission of the second count.
26I reject this submission. Her Honour was plainly aware that the applicant had ceased the offending conduct at the points referred to above. The applicant's complete disregard of her protestations was not permanent, but lasted as long as the offending conduct lasted. A reader acutely attuned to error could discern a potential inconsistency between the finding that the applicant completely disregarded her protestations and the finding that he stopped the offending conduct at two particular points (when she raised her voice and when she pulled away). However, such an analysis is inappropriate, particularly in respect of remarks on sentence that have been delivered orally and ex tempore immediately following the sentence hearing. Judges who impose sentences in such circumstances (as is the usual practice in the District Court) are entitled to have their remarks read and considered fairly and as a whole, with due consideration of the context in which they have been delivered.
27I do not discern any error in her Honour's assessment of the objective seriousness of the second count. It was open to her Honour to find that the offending was towards the lower end, but not at the lowest end, of the scale of seriousness. The digital penetration was effected as a result of the applicant physical forcing himself on the victim when they were in the restaurant together, in the dark. He had already suggested that he should make her pregnant. He was her employer and she was a new arrival to this country. She was terrified of what he would do to her.
28Her Honour took into account the prospect of deportation as amounting to extra-curial punishment. The fact of actual or potential deportation is irrelevant to the sentencing exercise. It was, accordingly, an error for the sentencing judge to use deportation to determine any aspect of the sentence: R v Pham [2005] NSWCCA 94 at [13]-[14] per Wood CJ at CL, Hislop and Johnson JJ agreeing. In the present case, this error was in the applicant's favour.
29I do not consider the sentence imposed for the second count to be manifestly excessive. The sole ground of appeal has not been made out.