16 During 2003 the appellant commenced a relationship with a woman whose daughter attended the school at which he taught and cohabited with her from August 2003 until the second half of 2004. After his arrest the appellant was suspended from teaching and thereafter he worked on a voluntary basis with an organisation that provides administrative assistance to schools and the Department of Education.
17 At the hearing of the plea of mitigation a number of character witnesses were called on the appellant's behalf. They spoke favourably of his work record and of his remorse in relation to his offending. The person who had effectively employed him after he was dismissed as a teacher said he would employ the appellant in a similar position upon his release from prison. Essentially, the witnesses said that the appellant's offending was out of character and that he expressed regret at having adversely affected others. Her Honour also had before her the victim impact statements of the two girls and their respective parents which made plain the detrimental impact the appellant's offending conduct had on the complainants and their families.
18 The learned sentencing judge found that it was not necessary to resolve whether it was the appellant who suggested that Y be brought into his sexual group or whether the idea came from X, as the appellant claimed. Her Honour considered that, on any view, his offending conduct against the two girls was very serious irrespective of who initiated the tri-party arrangement. Her Honour also did not sentence the appellant on the basis that he knew that Y was aged 15 at the relevant time - he asserted that he thought she was aged 16 - but rather on the basis that he was reckless as to that. But the learned sentencing judge rejected the appellant's claim that he did not know that Y had not had sexual relations before he commenced his relationship with her.
Grounds 1 and 2
19 I now come to consider the grounds. Mr Tehan, for the appellant, argued the first two grounds together. It was first contended that the individual sentences on count one and counts 5 to 9 are manifestly excessive essentially because the sentencing judge failed to accord sufficient weight to a number of matters of mitigation which were highlighted by counsel. First, it was claimed that not sufficient account was taken by her Honour of the appellant's character, background and personal circumstances at the time of the offending. It was said that the fact that the appellant came to be sentenced as a person of good character was more significant in cases such as the present when compared, for example, with a case involving drug trafficking. Counsel emphasised the impressive character evidence that was given on the appellant's behalf at the hearing of the plea in mitigation which showed that the offending was completely out of character, so counsel said, and that the only explanation for it was his emotional decline that was caused primarily by the breakdown of what counsel called "the loveless marriage". It was also said that the evidence before her Honour made it apparent that the appellant had shown genuine remorse for his offending, having pleaded guilty at a relatively early stage of the proceeding. Counsel then emphasised that the appellant's loss of his career amounted to significant punishment of him, given that he had been a dedicated teacher of some standing for some time who had enjoyed a high reputation in his profession. Mr Tehan also referred to the very poor health of the appellant's elderly parents, their concern that he would no longer be their carer and the resultant move from their former home to one near their other son. Mr Tehan said that, given his brother's work commitments, the parents essentially have to look after themselves so that his absence has worked a significant hardship on them. Counsel argued also that specific deterrence and protection of the community were not paramount sentencing considerations in this case, particularly given the Crown's concession that the appellant was unlikely to re-offend. The Crown also conceded, said counsel, that the offences fall within the middle range of the offences of this nature.
20 Mr Tehan accepted that all these matters were taken into account by the learned sentencing judge in the sentencing disposition, but argued that, given the length of the sentences imposed, her Honour could not have given them sufficient weight. More specifically, counsel pointed out that the sentences imposed in relation to counts 5 to 8 were considerably higher than those imposed in respect of like offending against X. Thus, for example, Mr Tehan pointed in that context to the sentence imposed on count 7 which was twice that imposed in relation to count 3, notwithstanding that the counts alleged sexual penetration in the first case against X and in the latter count against Y. It was also submitted that the three year sentence of imprisonment in respect of count 8 - indecent act in the presence of Y - is one year longer than any of the sentences imposed in relation to the offences against X, even that which involved sexual penetration of her by the appellant. It was said that the sentence on count 8 was "wholly out of kilter with the other sentences" and, as I will mention more fully later, was said to be afflicted by double punishment. It was also argued that the sentence imposed on count 9 - 2 years imprisonment - is well "out of kilter" with the other sentences and is manifestly excessive, particularly given the sentence that was imposed on count 10.
21 Mr Tehan also claimed that the total effective sentence of 7 years imprisonment overstates the overall criminality of the offending conduct and fails to accord a due weight to the mitigating factors. Counsel argued that the head sentence is in the order of that imposed for incest which is the more serious offence. Mr Tehan also submitted that the undue length of the total effective sentence is demonstrated by the fact that, absent the significant mitigating factors, her Honour's starting point for sentencing purposes must have been well over 10 years imprisonment and this was plainly excessive.
22 Counsel also claimed that, even if the total effective sentence of imprisonment is not beyond the relevant range, the non-parole period is. It was said that given the mitigating factors in this case and her Honour's acceptance that the appellant had reasonably good prospects of rehabilitation, it was not open to her to regard five years as the minimum period that justice required the offender to serve in prison.
23 In my opinion, however, grounds 1 and 2 should fail because the impugned individual sentences, the total effective sentence and the non-parole period are within the range of sentences that were available to her Honour to impose in her sentencing discretion. The task of a sentencing judge is to impose a just sentence having regard to the seriousness of the offence, the gravity of the offending conduct, the applicable sentencing principles, matters personal to the offender and other mitigating factors. I consider that the sentencing remarks, and the resultant sentences, demonstrate that her Honour did just that.
24 The offences in this case were of a very serious kind. As Callaway, J.A. has explained in R. v. Ellis,[1] Parliament has made it clear that the essential purpose of the applicable statutory provisions is to protect children and young persons from sexual exploitation, particularly by those who are in positions of care, supervision and authority in relation to them.[2]
25 But not only were the offences here very serious, the appellant's offending conduct was abhorrent. The appellant was not only in a position of trust and moral and intellectual superiority in relation to the two young complainants, but he was charged with the obligation of protecting them or at least furthering their interests. As a much older person and as their teacher, he appreciated, as her Honour said, that he had considerable influence over the impressionable and vulnerable young girls. X, in particular, must have been vulnerable given that, for some months before the offending conduct, he was her counsellor in relation to her behavioural problems. The appellant callously exploited this position over a considerable period for the purposes of satisfying his sexual appetite and in the course of so doing he effectively debauched the two girls. If the appellant did not suggest to X that she introduce her best friend, Y, to his sex group, at the very least he played a material role in having the 15-year old join it, knowing at the time that she was a virgin. Instead of protecting the complainants' interests as he should have done, he effectively destroyed their sexual integrity. Not surprisingly, the offending had a significantly detrimental effect on them and their families that is likely to continue for some time. As her Honour pointed out, none of the offending conduct was committed on the spur of the moment but involved, over some months, deliberate and premeditated encouragement of the complainants to satisfy his sexual appetite with the knowledge that they would be compliant with his wishes. In the circumstances, the principle of general deterrence and the need for the court to express denunciation of this offending conduct assumed considerable importance in the sentencing disposition. Thus, notwithstanding that below the Crown may have adopted the position that the offences fell in the middle range of offences of this kind, I think that in the circumstances the sentencing judge was entitled to treat the offending conduct as being very serious,[3] and to regard general deterrence and the need for the court to express its denunciation of the offending conduct as being of considerable importance in the sentencing disposition and thus take the view that the conduct called for condign punishment.
26 It is true that there were considerable mitigating factors in this case and Mr Tehan has emphasised them with his usual thoroughness. But all of them, as well as other mitigating circumstances, were taken into account by her Honour, as counsel fairly acknowledged, and there is nothing in the sentencing remarks or, I think, in the sentences that suggest that her Honour failed to accord them due weight. The sentences on counts 5 to 8, which were particularly attacked by Mr Tehan, are, in my view, plainly within the relevant range. It is unsurprising that they are higher than those imposed on counts 1 to 4 given that, amongst other matters, the maximum penalty in respect of count 7 is 50 per cent higher than that which relates to count 3 and the offending against the younger Y had more aggravating aspects to it. Similarly, I do not accept that the sentence on count 8 is "out of kilter" with the other sentences as the appellant claims. The offending which was the subject of that count was, as her Honour said, a very serious example of the offence in question and I consider that, in the circumstances, it cannot be said that it is outside the range of sentences that was properly available to the learned sentencing judge. I must also reject Mr Tehan's claim that the sentences here are more appropriate to those for incest which counsel said was a more serious offence. Putting aside the fact that in both sets of offending there is an abuse of power and authority, it is plain that each case must turn on its own facts and that in this case the abuse of trust and power was such that significant sentences were called for. I also think that the sentence on count 9, that is, 20 per cent of the maximum penalty prescribed, is not disproportionately high as the appellant would have it. Mr Tehan contended that the sentences do not reflect the Crown's concession that the appellant would not re-offend and that specific deterrence was not a relevant significant consideration. But her Honour was not bound to accept the so-called concession and, even if the appellant's prospects of re-offending are not significant given that his opportunity to do so may be limited in any event, it was open to the learned sentencing judge not to disregard the principle of specific deterrence for sentencing purposes. I do not read her sentencing remarks as indicating that she gave this undue prominence.
27 I also consider that the total effective sentence does not offend the principle of totality as was put for the appellant. Rather, given the serious of the offences and the gravity of the offending, I think that it cannot be said that the total effective sentence does not justly and appropriately reflect the total criminality of the appellant's offending conduct. That her Honour was mindful of the principle of totality is plain when one looks at the order for concurrency made in respect of the sentence imposed on count 8. Clearly, some cumulation was warranted in this case and the only question is whether it produced an unduly excessive total effective sentence which plainly goes beyond what is appropriate to reflect the appellant's overall level of culpability. On any view, I think his total criminality was very high and I consider that the total effective sentence is within the relevant range.
28 To put it shortly, I think that the impugned individual sentences are not outside the relevant range.
29 I have already dealt with the matter of the total effective sentence.
30 Although there is more force in Mr Tehan's claim that because the total effective sentence of 7 years imprisonment is stern and the non-parole period of 5 years is in the circumstances unduly excessive, I have come to the firm conclusion that it was open to her Honour to impose such a non-parole period. It is true that her Honour found the appellant's prospects of rehabilitation were reasonable and that, in appropriate circumstances, this factor may operate to warrant a shorter non-parole period than might otherwise have been the case. But the fixing of a non-parole period is particularly within the discretion of the sentencing judge and it must be borne in mind that the period represents the minimum time that the judge considers that justice requires the offender to serve in all the applicable circumstances. Moreover, a non-parole period has a penal element and where, as here, the impugned conduct calls for condign punishment in the application of the principle of general deterrence, its length should not undermine those objects.[4] The ultimate question is whether in the circumstances it was open to her Honour to conclude that the minimum period of imprisonment that justice requires the appellant to serve is 5 years. Given the very serious nature of the offending conduct and the need to give effect to the courts' denunciation of it and to the principle of general deterrence, I consider that it was open to her Honour to impose such a non-parole period.
31 I mention for completeness Mr Tehan's "reverse engineering" argument that, absent the mitigating factors, her Honour's starting point for sentencing purposes would have been 10 years imprisonment, does not demonstrate that the total effective sentence is plainly wrong. I consider that the argument is not helpful in this case, given that its underlying basis runs counter to the intuitive synthesis approach to sentencing that operates in this jurisdiction.
32 Thus, as I have said, I think grounds 1 and 2 should fail.
Ground 3 - double punishment
33 I now turn to the appellant's claim, made under ground 3, namely, that one or other of the sentences imposed on counts 3 and 8 is afflicted by double punishment. Mr Tehan contended, as I understand it, that because counts 1-4 were representative counts, the period covered by them substantially overlapped the period of the subsequent counts, more particularly counts 5 and 8, so that the appellant's conduct in respect of count 8 formed part of the background to the offence charged by count 3 and, counsel said, count 2. Thus, it was said, sentencing the appellant on counts 3 and 8 without providing a discount for the overlap would involve double punishment. Counsel argued that it is apparent from the judge's sentencing remarks and from the length of the sentence imposed on count 8 that her Honour did not accord such a sentencing discount and, therefore, one or other of the sentences, but probably that imposed on count 8, contains an element of double punishment.
34 It may be accepted that there is an overlap in the periods that apply to the two sets of counts, but it does not follow that because of it the sentences are infected by double punishment. It is clear enough that counts 3 and 8 deal with the infringement of different rights, namely, those of X and Y respectively, but that occurred at different times so that a sentence had to be imposed for each offence. Count 3 was concerned with the first time that the appellant had sexual intercourse with X, which occurred some weeks before Y joined the group. Count 8, on the other hand, was concerned with a subsequent occasion when the appellant had sexual intercourse with X, but the gist of the offence was committing that act in the presence of Y. Count 8, of course, was not a representative count. To the extent that the appellant's later conduct toward X was taken into account for the purposes of sentencing on count 2 and/or count 3, it was only relevant by way of context.[5] Importantly, as the learned presiding judge pointed out in argument, when sentencing on a representative count the sentencer cannot properly sentence the offender in respect of the wrongful conduct that constituted the relevant context and I see nothing in her Honour's reasons to suggest that she did that. In the circumstances, as a matter of common sense, there was no overlapping in the offences that were charged by counts 3 and 8 and consequently the sentences in
question do not involve double punishment in contravention of what was said in Pearce v. The Queen[6] as counsel submitted. Thus, I think that ground 3 should fail.
35 Mr Tehan has said all that could be said in support of the appeal but, in my view, it should be dismissed for the reasons I have given.
CALLAWAY, J.A.:
36 I agree subject to one qualification. There are also two points I wish to add. The qualification is that I would not myself say anything about Mr Tehan's "reverse engineering" argument. It is usually unhelpful to speculate as to what a sentence would have been absent a plea of guilty, but there are some cases where such an argument may with due caution be permissibly advanced. See, for example, R. v. Monardo[7].
37 The two additional points are these. First, as Chernov, J.A. has mentioned, counsel for the appellant submitted that the sentences imposed on counts 5 to 9 were inconsistent with those imposed on counts 1 to 4 and 10. The short answer to that submission may well be that the sentences on counts 1 to 4 and 10 were more merciful. If so, that does not impugn the other sentences if they, and the measure of cumulation directed in relation to them, were within the range. If there is a disconformity, it is not such as to impugn her Honour's overall synthesis: compare R. v. Albanus[8], R. v. Ash[9] and R. v. Bosio & Ors[10].
38 The second point is that I might have fixed a slightly lower non-parole period if I had been the sentencing judge. But that is not the test. A court of criminal appeal is not entitled to substitute its own opinion for that of the judge merely because it
would have exercised its discretion differently. As the High Court said in Lowndes v. The Queen[11], that is basic, the discretion which the law commits to sentencing judges being of vital importance in the administration of our system of criminal justice.
VINCENT, J.A.:
39 I also agree that this appeal should be refused for the reasons advanced by Chernov, J.A.
40 Like Callaway, J.A., I acknowledge that whilst there may be some situations in which assistance can be derived from a consideration of the sentence that would have been appropriate in the absence of mitigating circumstances, to embark upon such an exercise would rarely be helpful and, in any event, would need to be approached with care. In this case, what counsel for the appellant endeavoured to do was to ascribe to the mitigating factors a particular value measured in years of imprisonment and say that, allowing for them, a sentence of specific length would otherwise have been ordered. As Chernov, J.A. pointed out, to do so runs quite counter to the approach which has been adopted in this Court for a number of years.
CALLAWAY, J.A.:
41 The order of the Court is - Appeal dismissed.