CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - trial by jury - guilty verdict - act of indecency without consent - sexual intercourse without consent.

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10

R v Buda-Kaa [2013] ACTCA 46

R v Joyce (unreported, Australian Capital Territory Supreme Court, Penfold J, 5 February 2014).

R v Taylor [2015] ACTSC 43

R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581

ACT Director of Public of Public Prosecutions (Crown)

1. The offender came to trial on 22 March 2017. He pleaded not guilty to each of the ten counts on the indictment. On 5 April 2017, the jury returned verdicts of guilty on eight of the ten counts. Not guilty verdicts were returned on Counts 2 and 9.

2. The first count alleges that the offender had, unnecessarily, shown the complainant pornographic material as part of a PowerPoint presentation that was otherwise concerned with plagiarism.

3. The balance of the counts - with the exception of Counts 6 and 8 - relate to acts of indecency carried out on three different complainants. In general terms, these counts concern the touching or attempted kissing of each of the young women involved.

4. Counts 6 and 8 are charges of sexual intercourse without consent. They relate to the same complainant. Count 6 alleged digital penetration of the complainant's vagina and Count 8 alleged penile penetration.

5. The specific offences in respect of which the offender was convicted, and their maximum penalties, are as follows:

(a) Count 1 - That on 20 April 2015 at Canberra in the Australian Capital Territory, the offender committed an act of indecency in the presence of ZG without her consent, being reckless as to whether she was consenting.

(b) Count 3 - That on 23 April 2015 at Canberra, the offender committed an act of indecency on KA without her consent, being reckless as to whether she was consenting.

(c) Count 4 - That on 23 April 2015 at Canberra, the offender committed an act of indecency on TL without her consent, being reckless as to whether she was consenting.

(d) Count 5 - That on 29 April 2015 at Canberra, the offender committed an act of indecency on TL without her consent, being reckless as to whether she was consenting.

(e) Count 6 - That on 29 April 2015 at Canberra, the offender engaged in sexual intercourse with TL without her consent, being reckless as to whether she was consenting.

(f) Count 7 - That on 29 April 2015 at Canberra, the offender committed an act of indecency on TL, without her consent, being reckless as to whether she was consenting.

(g) Count 8 - That on 29 April 2015 at Canberra, the offender engaged in sexual intercourse with TL, without her consent, being reckless as to whether she was consenting.

(h) Count 10 - That on 28 April 2015 at Canberra, the offender committed an act of indecency on UU, without her consent, being reckless as to whether she was consenting.

6. Each of the complainants was a student in the offender's Business Law Graduate course or in a different lecturer's undergraduate Business Law course. Both of these courses required the submission of the same written assignment.

7. The system in place at the University involved each student having to submit his or her assignment for scrutiny by an online software program, called URKUND, which is designed to detect plagiarism.

8. The URKUND program operates on the basis of text matching. Accordingly, if it matches a string of words in a submitted assignment with the same string of words in another document, found on the Internet or on the University system, it would, by the allocation of a percentage score, alert the University to the possibility of plagiarism.

9. A 'side effect' of the program is that it lists, under the somewhat confusing heading of "Sources Not Used", sites apparently irrelevant to the assignment. Thus, in relation to Count 1, three pornographic sites were listed in Ms ZG's URKUND report.

10. The URKUND report for each of the four complainants raised the possibility that their respective assignments contained portions of text that had been plagiarised from another source or which had not been appropriately referenced.

11. The offender was investigating allegations of plagiarism by the four complainants, as well as seven other students. One of those other students was a complainant listed in the indictment. However, the offender was acquitted in respect of that count (Count 9).

12. I wish to make it clear that, in sentencing the offender, I am not proceeding on the basis that the complainants were specifically selected to be the subject of criminal activity. Some of the complainants had actually been referred to the offender by the lecturer of the undergraduate Business Law course. For present purposes, I have assumed that there were legitimate reasons to investigate each of the complainants and that the criminal activity is restricted to the events that occurred after each complainant entered the offender's office.

13. In respect of Count 1, the offender admitted that he had shown the complainant one, essentially innocuous, page from a pornographic site. The Crown case was that he showed her three slides, including at least one image of child pornography. I am satisfied that the jury accepted the complainant's version, although this must be restricted to the existence of pornography rather than child pornography. I have proceeded on the basis that the images did not include child pornography.

14. Apart from the admission referred to in the previous paragraph, the offender denied all of the allegations made against him. He alleged that each of the complainants had made up their accounts. I am satisfied that the jury accepted the evidence of the complainants as to the touching and kissing (or attempted kissing) described in their evidence.

15. I am also satisfied that the jury found that the sexual intercourse, relating to the complainant in Counts 6 and 8, occurred as she described.

16. Throughout the trial, the offender, through his counsel, suggested that the complainants had made up their allegations in an attempt to overcome any findings of cheating by the University, which may have prevented them from successfully completing their course. Each of the students was from an overseas country and had by themselves, or through their family, paid a significant amount of money to enrol in their respective degrees.

17. I am satisfied that the jury rejected any suggestion that any one of the complainants sought to make up a story to assist their chances in the course. In fact, quite to the contrary, I am satisfied that the jury was of the view that the offender had taken advantage of the students' vulnerability, because of the above factors, in seeking to obtain sexual gratification from them.

18. Victim Impact Statements were obtained from three of the complainants and generally indicate the upset and humiliation that they experienced. They also refer to the impact on their studies and the continuing difficulty they face in dealing with reminders of their experiences. Their studies and, where applicable, their employment has been affected.

19. Ms TL, the complainant in the rape allegation, originally intended to give a statement but changed her mind. A message received on her behalf stated: "She no longer wants to do a VIS as she didn't want to be reminded of the incident". This brief message is itself an indication of the effect of the crimes committed upon her.

20. I note that, in the statement of Ms KA, she refers to the hurt she suffered as a result of discovering that all of the victims were from Asian countries. Objection was taken to the relevant paragraph. I have not taken it into account.

21. The offender was born in 1950. When he was seven years of age, he suffered a fractured skill after falling from a train. Unfortunately, there are few medical records giving detail of the extent of the injury suffered. An injury of this type would normally be associated with brain damage.

22. Reference was made to some events in 1982. Having regard to their age, I think it would be unfair to take them into account against the offender. It will be seen below that these events played a part in medical evidence, given on the offender's behalf. I note here that I am not of the view that the medical evidence was sufficiently precise to enable me to attribute these events to any medical condition suffered by the offender. I will treat the offender as having been of previous good character.

23. The offender commenced working as a law lecturer at the University of Canberra in 1994. At the time the offences took place, he had taught at the University for approximately 21 years. A number of character witnesses spoke of his achievements as a law lecturer, both in their written references (Exhibit 2) and in oral testimony. The offender clearly distinguished himself in his academic career, which extended not only to teaching but also to research and publications.

24. I also heard from a former student who said he had been an excellent teacher. I do not regard her evidence about the absence of inappropriate conduct towards her as being relevant.

25. This raises an issue which permeated a number of the written references. It is entirely appropriate for a referee to say that the proven conduct is inconsistent, or out of character, with their knowledge of a particular offender. On one reading, some of the references went a little further, suggesting a disbelief in the offender's guilt. Where that is the case, I take no account of that belief but instead rely on the verdict of the jury.

26. The offender's daughter, Catherine, spoke of her father's devotion to his family and to his wife. I entirely accept that the offender was a devoted and loving husband and father. I take these matters into account, consistent with my finding that he was of previous good character.

27. Three medical reports were tendered on the offender's behalf (Exhibit 1). Each author has a different specialty and each report paints a different picture.

28. The first report in time is by a clinical psychologist, Dr Clout. She assessed the offender in April of this year. Her Executive Summary includes the following information:

(a) The offender described symptoms consistent with the diagnosis of a Major Depressive Disorder during the investigation of the offences but he no longer meets the appropriate diagnostic criteria.

(b) Psychometric testing revealed that Mr Hoyle is at a "low risk of reoffending generally".

(c) "From a mental health perspective, there is no indication that a period of imprisonment would be likely to weigh more heavily on Mr Hoyle than somebody of normal mental functioning."

29. Remarkably, the developmental history given to Dr Clout does not include a number of significant events that are found in the histories provided to other doctors. Specifically, she was not informed of a history of serious head injuries during the offender's childhood. She specifically states at paragraph [45] of her report: "there is no evidence Mr Hoyle has ever experienced any intellectual impairment".

30. Notwithstanding the just quoted view of Dr Clout, it is important to remember that she had no history of brain damage or disease which must impact on her conclusions.

31. The next report is from a clinical neuropsychologist, Dr Lonie. She saw the offender on 26 June 2017. She recorded a very different history to Dr Clout. The history includes: a fall from a train; being hit by his mother's car when eleven years old and suffering a concussion; and another concussion suffered in 1982, sustained after racing a motor car. In 2011, the offender suffered a fracture to his vertebrae and pelvis and required stiches to his head. This occurred after falling from a ladder.

32. Dr Lonie noted, at paragraph [25] of her report:

With reference to the catalogue of injuries and significant illnesses, it is apparent that the medical history provided by Mr Hoyle during our consultation on 26 June 2017 lacked considerable detail. Furthermore, there are a number of inconsistencies in the medical history provided on interview and the prepared catalogue of injuries and significant illnesses.

33. The doctor further noted that she was told by the offender's daughter that there had been "a decline in her father's mental sharpness... Cathy provided a several year history of progressive cognitive and functional decline..."

34. Dr Lonie found indications of brain disease. These included an impairment of the offender's executive function and a "reduced ability to learn and retain new information of a verbal nature". She also said that there was a reduced speed of intellectual processing and a "reduced visuo-perceptual problem-solving reasoning ability".

35. Dr Lonie notes that these findings are "suggestive of co-morbid disease processes". Besides identifying the brain disease, the doctor does not specifically identify any co-morbid disease.

36. It is a little difficult to understand if Dr Lonie is suggesting that the offender's brain disease, which presumably pre-dated the offences, had any effect on the commission of the offences. She dates the brain disease, or at least severe head injury, back to the fall from the train. She states, at paragraph [111]:

The history of further subtle progressive involuntary movement, memory decline, symptoms of social and emotional executive loss and loss of 'mental acuity' dates back several years and these newer symptoms of brain disease are therefore likely to have been present as of 17 April 2015 also.

Alterations in social cognition may give rise to inappropriate behaviour in social contexts and/or the inability to form and maintain social relationships. It may be more difficult for an individual with impairment of social cognition to perceive the emotions of others, empathise with others on a cognitive and/or emotional level, regulate their own behaviour through self-awareness and self-monitoring and via initiating and inhibiting behaviour. Social cognition is typically impaired following moderate-severe brain injury.

38. Despite the above view, Dr Lonie then stated, at paragraph [113]:

Mr Hoyle's intellectual functioning is likely to have fallen within a normal range for a man of his age as at 17th of April 2015 and is therefore unlikely to have interfered with his ability to carry out his usual everyday functions.

39. I observe here that it was no part of the offender's defence that his actions were the product of any cognitive impairment. To the contrary, his defence was that the events had not happened at all. I also note that he fully participated in his trial and gave evidence clearly and without any apparent intellectual or cognitive disability.

40. In my view, Dr Lonie's remarks can only be relevant to the offender's capacity to deal with a lengthy term of imprisonment. As I read her report, this capacity is most likely to be a product of the offender's decline in cognitive and functional abilities which will ultimately require care and supervision. She also points out that the head injury may well increase the offender's risk of developing dementia.

41. Dr Rosenfeld is a consultant geriatrician and physician. He assessed the plaintiff on 28 June 2017. The history he took does include the head injury when the offender was a child.

42. Dr Rosenfeld comments on CT and MRI brain scanning. He identifies significant brain disease and says that the disease is likely to be gradually progressive. He envisages the impact of the illness on frontal lobe executive function, insight and social control. He anticipates that: "Mr Hoyle will likely suffer from gradually worsening impulse control and increasing disinhibition".

43. Dr Rosenfeld stated, however, that he was not able to say "the nature and extent" of the progression. In relation to his capacity to deal with prison life, Dr Rosenfeld says the offender:

... will be more vulnerable to harm as a result of his reduced insight and impulse control. This may more likely lead to conflictual situations in a prison environment.

44. The doctor also foresees "worsening balance and an increased risk of falling."

45. Dr Rosenfeld notes that the offender's median life expectancy is now 19.3 years but that the effect of the progress of brain disease and hypertension is likely to lead to a reduction in the order of 33% to 50%. This could result in a life expectancy of between 9.65 and 12.74 years.

46. Dr Rosenfeld gave oral evidence, by telephone. His evidence in some respects went considerably further than the contents of his report. This was most marked in the questions about the offender's brain disease not only having been present when the offences were committed but also their influence upon his commission of the offences. It was never any part of the defence run at trial that there might have been any brain damage as a cause for the offender's conduct.

47. I accept Dr Rosenfeld's evidence that the frontal lobe damage has been present for many years and may have influenced the offender's conduct from time to time. I also note the doctor's evidence to the effect that persons with a superior intelligence have the capacity to mask, involuntarily, damage to one part of the brain by use of another part.

48. Dr Rosenfeld was clear that he could not determine the extent of the progression of brain damage or brain disease that existed when the offences were committed. I do not accept that the offender's conduct was in any way a product of any brain damage or disease. Such a conclusion would be entirely inconsistent with the references about his general functioning at the time, the descriptions by the students and fellow lecturers of his behaviour and his own behaviour in court, in which he competently and lucidly gave evidence and instructed his lawyers.

49. The offender has asked me to have regard to the principles set out in R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581 ('Verdins'). In this case, the Victorian Court of Appeal, at paragraph [32], had the following to say about mental impairment in the sentencing process:

Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

50. I do not think that the evidence of Dr Rosenfeld allows me to find that the offender's moral culpability should be reduced by his condition. I also do not think that the condition has a bearing on the type of sentence that should be imposed.

51. In relation to the risk of reoffending, I do not think that there is any real risk of this offender carrying out any similar crimes in the future. I do think that the balance of the Verdins considerations are relevant and I will specifically take them into account. The importance of Verdins in this case will be reflected in a diminished length of both the sentences and the non-parole period.

52. In my view, and having regard to the terms of imprisonment that I think are appropriate, the reduced life expectancy is not relevant. What is relevant is the difficulties that the offender will experience in dealing with life in prison as his brain disease progresses.

53. Accordingly, I think that I am bound to take the offender's medical condition, and in particular its prognosis, into account in the sentencing exercise.

54. The sentencing of an offender is always a difficult exercise. It is all the more difficult when the offender is a person of previous good character who has made a significant contribution to society and has, almost at the conclusion of a notable career, committed very serious offences.

55. I accept that the convictions will overshadow all of the offender's achievements and remain a stain on his character for the rest of his life. As I have already said, I also accept that the offender is unlikely to re-offend.

56. It was submitted I should approach sentencing on the basis of a term of imprisonment including a suspended portion. I disagree. I think the severity of the conduct and the nature of the conduct does not permit this approach. It will be seen that I will apply a substantial attitude of leniency arising from the offender's medical condition. As I have said, this will be reflected in both the sentences and the non-parole period.

57. Some of the offences in this case are relatively minor. The sentencing exercise is, however, dominated by the convictions in respect of Counts 6 and 8. These are the rape convictions which not only carry a lengthy maximum penalty but are crimes rightly regarded by society as being at the higher end of criminality.

58. The rape of Ms TL was not associated with any violence, nor was there any violence involved in any of the other offences. This must be taken into account in sentencing. There are, however, a number of aggravating factors. The offender was a lecturer at a university, teaching students much younger than he was. He was in a position of authority, trust and influence. He abused this position.

59. In addition, the students involved in this case were particularly vulnerable because of their anxiety stemming from being in Australia as international students on visas.

60. Another factor, relevant to general deterrence, is that sexual assaults at universities are far too common. Only this week, the Australian National University stated that it is introducing councillors to its campus to deal with the victims of sexual assaults. The sexual assaults contemplated are no doubt largely committed by students on students, rather than lecturers on students. Nevertheless, this indicates the vulnerability of students in a university setting to such assaults.

61. In respect of my general approach to sentencing, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), expressed in s 6, and the overall purposes of sentencing, as stated in s 7. Although s 10 states that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate, I consider this to be a case where imprisonment is inevitable.

62. In addition, the serving of a sentence of imprisonment by way of a suspended sentence or an intensive corrections order would not meet the dictates of justice.

63. Every case is different and must be approached on its own facts. Nevertheless, I have been referred to, and considered, a number of precedents. They include: R v Joyce (Unreported, Australian Capital Territory Supreme Court, Penfold J, 5 February 2014), R v Buda-Kaa [2013] ACTCA 46 and R v Taylor [2015] ACTSC 43.

64. Counts 6 and 8 occurred during the same encounter between the offender and Ms TL. The sentences for these two counts must be significantly greater than for the other counts, but they can be served concurrently.

65. Count 1 involved the showing of pornographic material to Ms ZG. This was totally inappropriate but nevertheless can be categorised as an offence of minor objective seriousness.

66. Count 3 related to Ms KA and involved the offender touching her and trying to kiss her. This offence is also of minor objective seriousness.

67. Count 4 related to the first meeting with Ms TL. It involved the offender indecently touching the complainant, including trying to touch her breast. I would describe this offence as a little in excess of minor objective seriousness.

68. Count 5 occurred at the second meeting with Ms TL and involved the accused touching her legs and moving his hands underneath her skirt. I would categorise it in the same way as Count 4.

69. I will return to Counts 6 and 8 below. Count 7 involved the accused touching Ms TL's breast and trying to kiss her. I categorise it in the same way as Counts 4 and 5.

70. Count 10 related to Ms UU and consisted of the offender holding her hand, touching her face and kissing her on the forehead, cheek and lips. I put this offence in the same category of seriousness as Count 1.

71. Returning to Counts 6 and 8, in the former the offender inserted his finger into Ms TL's vagina. In Count 8 he removed her underwear, turned her around and had penile vaginal intercourse with her from the rear. I do not regard his ejaculation into his hand as having any mitigating effect.

72. I also do not regard the absence of any resistance from Ms TL as assisting the offender's position. Her passiveness only adds to the severity of the breach of the offender's position. It would have been utterly beyond the contemplation of Ms TL that the events were occurring in a senior lecturer's office. It is not surprising that she was effectively in a state of shock.

73. In my view Counts 6 and 8 should be viewed together and seen as being of medium objective seriousness. I reject the offender's submission that these offences were below the medium line. The nature of the relationship between the offender and the students does not permit such a finding. I would add here that I am satisfied that the evidence disclosed that the offender was patently aware of the status of the students. For example, he had their profiles on his computer.

74. I do accept that the offences could have been more serious, for example involving violence and restriction of liberty. In addition, as I have said already, I have approached sentencing on the basis of the offender being a person of previous good character.

75. There are four different complainants. On one approach, because of the different levels of seriousness of the offences, it might be said that the sentences for all but Counts 6 and 8 could be served concurrently and 'within' the period of imprisonment for Counts 6 and 8. To do so, however, would be to demean the appropriate expectations of the complainants besides Ms TL. Although not extensive, I am of the view that there must be a degree of accumulation.

76. In respect of Ms TL, I think the sentences for all the offences committed at the second meeting should be treated as part of the same 'enterprise' and therefore be concurrent. However, there should be a degree of accumulation in respect of Count 4, which occurred at the first meeting.

77. I have concluded that the total sentence of imprisonment should be 4 years and the non-parole period should be 2 years and 6 months. Both periods will commence from 5 April 2017. I do not regard the offender being granted bail for medical reports as affecting his starting date.

78. The sentences for each offence will be seen in the orders that I make. Although served concurrently, the sentence for Count 8 is longer than that for Count 6 because it carries the aggravating factor of the possibility of the transmission of a sexual disease and pregnancy. Ejaculation into the hand is far from a safe method of birth control.

79. I have also distinguished, in terms of sentence, between Counts 1, 3 and 10 compared to Counts 4, 5 and 7.

(i) The convictions in respect of Counts 1, 3, 4, 5, 6, 7, 8 and 10 are confirmed.

(ii) For Count 6 the offender is sentenced to a term of imprisonment of 3 years to commence on 5 April 2017 and end on 4 April 2020.

(iii) For Count 8 the offender is sentenced to a term of imprisonment of 3 years and 6 months to commence on 5 April 2017 and end on 4 October 2020.

(iv) For Count 1 the offender is sentenced to a term of imprisonment of 2 months to commence on 5 September 2020 and end on 4 November 2020.

(v) For Count 3 the offender is sentenced to a term of imprisonment of 2 months to commence on 5 October 2020 and end on 4 December 2020.

(vi) For Count 4 the offender is sentenced to a term of imprisonment of 4 months to commence on 5 October 2020 and end on 4 February 2021.

(vii) For Count 5 the offender is sentenced to a term of imprisonment of 4 months to commence on 5 November 2020 and end on 4 March 2021.

(viii) For Count 7 the offender is sentenced to a term of imprisonment of 4 months to commence on 5 November 2020 and end on 4 March 2021.

(ix) For Count 10 the offender is sentenced to a term of imprisonment of 2 months to commence on 5 February 2021 and end on 4 April 2021.

(x) A non-parole period of 2 years and 6 months is set to commence on 5 April 2017. The offender is eligible for parole on 4 October 2019.

I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim.