R v Kafataris

Representation: Counsel: Mr L Nicholls (the offender)
Solicitors: Ms G Namat, Solicitor Advocate
(The Crown)
Ms U Zafiris (the offender)

File Number(s): 2021/00127078

Publication restriction: s15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the name of the complainants

REMARKS ON SENTENCE

1. On 1 September 2025 the offender pleaded not guilty upon arraignment on the following count on an Indictment:-

2. On a day between 1 January 2014 and 10 April 2014, at Narellan in the state of New South Wales, with the intention of making it easier to procure a child being SH for unlawful sexual activity, engaged in conduct exposing that child to indecent material.

3. On 17 September 2025, the jury returned a verdict of guilty. The offender is to be sentenced for an offence pursuant to s66EB of the Crimes Act 1900 (NSW) (“CA”), the maximum penalty for which is imprisonment for 10 years. There is no standard non-parole period prescribed.

4. The offender had earlier pleaded guilty to two counts of sexual touching a young person (“CB”) between 16 and 18 under special care, an offence pursuant to s73A(1)(a) CA (Counts 5 and 6). The maximum penalty prescribed for those offences is 2 years imprisonment. They were two of six counts on an Indictment on which the offender was arraigned on 13 May 2024. He was acquitted of two other counts, and the jury was unable to agree on Count 1 above, which required a re-trial. He had spent 6 months in custody on remand. The procedural history was complex, however the trial on Count 1 was the fifth occasion on which the matter was listed for trial.

The sentence hearing

4. The sentence hearing took place on 26 September 2025. The Crown sentence summary became Exhibit A and included the following:-

(a) The statement of agreed facts with respect to Counts 5 and 6 (Exhibit A4) (b) Victim Impact Statement (“VIS”) of SH (Exhibit A6) (c) Letter from Ms Rodgers, psychologist dated 23 September 2025 (Exhibit A7) (d) The offender’s criminal antecedents which included no relevant previous offending (Exhibit A8) (e) The offender’s custodial history (Exhibit A9). The Crown Sentence Summary noted the offender had previously spent 6 months in custody following his arrest in respect of this and other offences for which he had ultimately been found not guilty.

5. The VIS was read by Ms D Feilen, a victim support worker. The VIS is referred to below.

The offender’s evidence

6. The offender relied on a report of Ms J Taoube, psychologist dated 14 September 2025. Ms Taoube took a personal and family history of the offender who was raised in Sydney by Greek Cypriot parents as the second eldest of four male siblings. His father had died in 2018 and his mother in 2023, however the author opined that following her assessment it was evident that the offender had from early childhood and emerging into his adolescence, youth and adult years a pattern of traumatic experiences and emotional instability that has had a significant adverse impact upon his mental health. The author set out the offender’s employment history and noted his non-discipline approach with students which was viewed with suspicion by other teachers. The offender resented being targeted for his approach and developed a strong sense of mistrust for others teachers and “deputies”.

7. Under the heading “Medical/Developmental” and a further heading “Death and Grief” the author outlined a number of episodes of grief and loss suffered by the offender with significant persons in his life dying. This included a female neighbour he referred to as “Nonna”, who died at the age of 60, a high school friend who died in year 10, his father who died suddenly of a massive heart attack and a year 10 student at Fairfield High School, following which one of his own students (“N”) died by suicide for which he felt extreme guilt, blaming himself for the choice of novel he was teaching her just prior to her death. This occurred in 2020 and he stated that her death triggered the unresolved grief he was still feeling about his father’s recent death. In 2022, his best friend suffered a heart attack at the age of 52 and died and then in 2023 his mother, with whom he was close, died. In 2024 his best friend’s father died which again triggered his unresolved grief concerning his own father.

8. Under the heading “Legal issues/CB”, the author noted that the offender expressed extreme remorse and regret for the interactions giving rise to the offences in Counts 5 and 6 at the time of the offending conduct, however he never thought it might be illegal. He now understood that it breached community standards. CB had been N’s best friend, and he told the psychologist that they went through the grieving process together supporting each other without any romantic connection. He reported, “CB was the only person that made me feel better about myself and told me I wasn’t to blame for N…”.

9. Following assessment Ms Taoube opined that the offender appeared to have been suffering and continues to suffer “from what can be best be described as Prolonged Grief Disorder (PGD), a trauma and stressor related disorder outlined in DSM-VTR and its impact on his life”. This opinion was also demonstrated through his lack of effective coping skills and the low efficacy he displayed for coping with difficult situations/emotions “as well as the negative impact of his coping style resulting in legal consequences”. The psychologist noted that the offender had been diagnosed with an adjustment disorder following the death of his father as at the time there was a clinically significant acute bereavement. Her opinion regarding PGD was based on his symptoms persisting longer than a 12 month period after his father’s death.

10. The author noted that the offender has very limited skills with handling negative emotions effectively and had never learnt how to tolerate emotional distress nor regulate emotional arousal in an effective manner. She opined that his conduct “in relation to the charges now before the court was brought about by his psychological condition at the time as a means for him to deal with his unresolved PGD and an ongoing aggravation of that disorder arising from the death of N, which he saw as being his fault”. She went on to opine that a substantive factor in him “crossing the line” in respect of CB was that he felt a bond with her and she was someone who provided him with empathetic interpersonal connection.

The offender’s oral evidence

11. The offender gave evidence at the sentence hearing confirming his date of birth and that he is now 57 years of age. He stated that his evidence at trial had been “entirely truthful and accurate”.

12. His employment had been terminated by the Department of Education in 2021 and his Working with Children Check status revoked. He gave evidence that he can never teach secondary students again. Since then he had financially supported himself on his leave entitlements, having never taken time off during his 25 years employment as a teacher. He now has family support and works part-time labouring for a friend who is a plumber. In the future he is considering learning that as a trade.

13. The offender described the 6 months remand in custody as “the worst 6 months of my life”. He said he spent the whole time being petrified of being “shanked or stabbed”.

14. The offender described his treatment under the care of Ms Taoube as “life changing” and he was committed to continue his treatment with her in the future. As a result of his treatment to date, he now had a significant understanding with respect to the trauma he suffered following the deaths of people in his life and his unresolved grief. The offender gave evidence that he had been contacted by the victim in Counts 5 and 6, CB who is now 22 years of age and they met a couple of times each month as friends. He helped her with her university assignments and general support. He also gave evidence that they sometimes hug and kiss goodbye. With respect to the two offences, he now totally regretted what had happened and had an understanding of his reaction to N’s death. He said in so offending, “I let her and me down”.

15. The offender gave evidence that he now regretted the whole situation with the offending in Count 1 and had gained insight now into his behaviour at the time and the potential for harm to his students. He regretted blurring the lines between his role as a teacher and the students, and understood the great potential for harm in doing so. He explained his behaviour by having a focus on being relatable and fun in his approach to teaching and said that he was never going to put himself in that situation again.

16. The offender was cross-examined about the circumstances in which the offending occurred in both Counts 5 and 6. He stated that the kiss in Count 6 had been a “kiss goodbye” and in Count 5 it had been a “kiss hello”. He repeated his evidence that he was not in 2021 aware of the possible consequences of kissing the victim as he had no understanding of the sexual touching legislation. He described his understanding as “deficient”, but at the time he had no concept that the conduct was in any way sexual. When it was put to him that it was sexual, he denied that.

17. The offender agreed that as a teacher with 25 years’ experience in 2021, he was aware that kissing a student was a breach the Departmental Code of Conduct, but said he never thought it was illegal at the time.

18. The offender was taken to various parts of Ms Taoube’s report. He agreed that he had let his former students down by his offending conduct. In respect of Counts 5 and 6 he gave evidence that he and CB had been supporting each other for a period of 6 months and described the two occasions on which he kissed her as “part of cultural norms” and nothing sexual. He denied taking advantage of her and denied that he had kissed her for any sexual gratification. When asked why he had spent 6 hours and 5 hours respectively on the two occasions inside his apartment with a 17 year old student he gave evidence that they had watched a movie and that during the movie he had been teaching her as it related to a subject at school. It was put to him that the offending was “all about you” which he denied, stating that it was all about “the grieving process”.

The Crown’s submissions

19. The Crown relied on a detailed written outline of submissions setting out the details of the offences and its summary of facts to be derived from the jury verdict in respect of Count 1. Some of those facts were put in dispute by the offender. The facts to be derived from the jury verdict as found by me are therefore set out below.

20. In relation to the assessment of objective seriousness of the offences in Counts 5 and 6, the Crown submitted that the offending constituting an “egregious breach of the position of trust the offender held in relation to the victim” having been her English teacher at Fairfield High School for 2 years from year 10 to year 12. The offender was 52 years of age at the time of the offending, and the victim was 17, providing an age disparity of 35 years.

21. The Crown submitted the offending was not an isolated incident as on 14 April 2021, the victim had attended the offender’s apartment where they kissed on the lips at the front door following which she spent approximately 6 hours inside his apartment. Count 5 occurred on 18 April 2021, where the offender kissed the victim on the lips at the front door of his apartment. After they had spent approximately 5 hours inside the offender’s apartment, the offender walked the victim to Bankstown train station and again kissed her on the lips (Count 6). The Crown characterised the offending conduct as a “repeated exploitation of a vulnerable young person in a special care relationship”.

22. In relation to Count 1, the Crown again submitted the offending was not an isolated incident but occurred in the context of the offender first making comments about the victim’s appearance when she was a year 9 student. This conduct continued when the victim was in year 10 and under the age of 16 years. The Crown characterised the offending conduct as “objectively serious for offences of this kind”. The Crown submitted the offender’s conduct introduced the victim to sexual concepts as part of a manipulation process to entice the victim to engage in unlawful sexual activity with him.

23. The Crown noted that the offender was entitled to a 5% discount for his pleas of guilty entered to Counts 5 and 6 on 13 May 2024, the first day of his second trial.

24. The Crown set out well established legal principles for sentencing child sex offenders, together with the purposes of sentencing and the importance of general deterrence, together with personal deterrence and recognition of harm done to the victims.

25. The Crown submitted the s5 threshold had been crossed and no sentence other than full-time imprisonment was appropriate. Taking into account that the offender had spent 6 months in custody on remand, any term of imprisonment should commence on 26 March 2025.

26. In her oral submissions, the Crown accepted that the offending in Counts 5 and 6 inherently conveys a breach of trust and therefore the Court should not “double count” that as an aggravating factor.

27. The Crown addressed a number of matters raised by the offender in his counsel’s outline of written submissions. The Crown submitted that a factor relied on by the offender, namely that there was no complaint about the offender’s conduct at the time of his offending was completely irrelevant to sentencing the offender. It was submitted there may be many reasons why no immediate complaint was made in accordance with the statutory direction now given pursuant to the Criminal Procedure Act 1986 (NSW) in respect of this common misconception.

28. The Crown also addressed the offender’s reliance on a factor that “the victim acquiesced to request or at least indicated doing so”, by submitting that there was no defence of consent to the offences charged. The Crown relied on the Court of Criminal Appeal decision in CT v R [2017] NSWCCA 15, where the Court held at [71] that “it is quite inappropriate to equate a child’s appreciation of a sexual experience with that of a mature adult”. The Crown submitted that mere lack of opposition is irrelevant, and that lack of consent was not an element of the offences, as children are unable to give informed consent, relying on R v Nelson [2016] NSWCCA 130 at [23] where Basten JA held that mere lack of opposition is irrelevant in sentencing.

29. In response to the offender’s reliance on a factor that whilst the offender was a teacher at her school, he had no direct authority over her, the Crown submitted that whilst he was not the teacher of the victim in Count 1, he was her supervisor, for example on sport teams, and he had offered assistance to her with her creative writing during school hours as well as participating in the writing group.

30. In response to a submission relied on by the offender that there was no evidence that the victim suffered substantial harm, the Crown submitted there was clearly harm to the victim but did not submit that harm exceeded what might be expected of offences of this kind so as to be an aggravating feature.

31. In response to the offender’s submission that the victim in respect of Counts 5 and 6 was 17 years and 4 months of age as a relevant factor to the assessment of objective seriousness for offences pursuant to s73A CA, the Crown submitted that where the victim fell within the range, namely 17 years, where in the range was of very little significance, relying on Gale v R [2021] NSWCCA 16 at [50] where RA Hulme J said:-

“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”.”

32. In response to a submission by the offender that the victim was a “clearly willing party”, the Crown submitted that consent had no significance in sentencing particularly as the offence of aggravated sexual touching without consent was much more serious, attracting a maximum penalty of 7 years imprisonment.

33. In response to a submission that the offender subjectively did not consider kissing the victim to be sexual, the Crown submitted it was hard to accept as it could only be “sexual”. The Crown submitted that his evidence to the contrary was an attempt to downplay and minimise the gravity of the offending.

34. The Crown submitted that the offender’s loss of employment was a matter of limited, if any, weight given the nexus between his employment and the offending conduct in respect of each count.

35. The Crown submitted that members of the teaching profession have a significant responsibility in guiding and encouraging young students and that parents and the community generally place trust in teachers to guide their students. The Crown rehearsed the circumstances of each of the three offences to submit that what had occurred was a significant breach of trust with respect to both victims. The Crown submitted that the offending conduct was utterly inappropriate and persistent conduct which took advantage of the youth of the victims and his position given the clear power imbalance between them. In those circumstances, general deterrence, denunciation and the protection of the community should be given weight in sentencing having regard to the victims being in a special care relationship. A clear message needed to be sent to the community that such conduct must not be tolerated and severe punishment will be imposed, emphasising the need for general deterrence in sentencing for such offending.

The offender’s submissions

36. Counsel for the offender relied on a detailed written outline of submissions. Counsel set out the procedural history and recorded that the trial that commenced on 1 September 2025 was the fifth trial concerning the index offences. Counts 5 and 6 were Table 2 offences and would ordinarily have been dealt with in the Local Court.

37. Counsel outlined the factual circumstances of the offending in Count 1 and rehearsed the agreed statement of facts regarding Counts 5 and 6. He submitted that whilst the nature of such offences is objectively serious, the objective facts of each of the index offences do not fall within the worst category of offending warranting the maximum penalties prescribed.

38. Counsel set out the following factors relevant to the assessment of objective seriousness in Count 1:-

39. Age of victim – she was approximately six weeks from her 16th birthday at the time

40. Single count

41. Conduct was of limited duration

42. No physical contact between them

43. No threats, pressure or overt persistence involved

44. No complaint about conduct at the time

45. Victim acquiesced to request or at least indicated doing so

46. Indecent material was words only – no images or child abuse material shown

47. No evidence of any subsequent unlawful sexual activity

48. Victim was a student and offender a teacher at her school – no direct authority but involved an exploitation rather than any abuse of their relationship and the community expectations of inherent trust due to that relationship

49. No evidence of substantial harm to victim – she refers to him in 2019 as ‘the best man’ she knows.

50. Counsel submitted that the objective seriousness of the offence fell at the upper low range for such offences. He further submitted that had it occurred 6 weeks or so later “it would not have been an offence in the law that then applied”.

51. In assessing the objective seriousness of the offending in Counts 5 and 6, counsel relied on the following factors:-

52. Age of the victim – 17 years and 4 months

53. Conduct was of extremely transient duration – two by one second kisses between them

54. Consensual - no coercion – victim clearly willing party

55. Interactions in context of their friendship / bond developed over 5 months from the tragic suicide of another student supporting each other through grief process

56. No other sexual contact or attempt of same – no evidence of any sexual relationship between them

57. Offender subjectively did not consider it to be sexual – no evidence that victim did either

58. Community expectations however would have considered kissing on lips sexual

59. Counsel submitted that the objective seriousness of each offence was at the lowest range for such offences.

60. Counsel noted the offender had no prior convictions for any related or similar types of offences and he was entitled to a 5% discount in respect of Counts 5 and 6. In respect of those offences he had accepted responsibility for his actions and acknowledged the potential harm that may have been caused to the victim.

61. Counsel set out a number of significant subjective factors to be taken into account. The offender is now 57 years of age and has the support of his siblings, despite the nature of these proceedings. He had worked as an English teacher for 25 years and counsel referred to the substantial evidence before the Court that demonstrated he was passionate about creative writing and literature and well respected by students and parents. As a result of the charges, he had been permanently removed from teaching and his Working with Children accreditation had been revoked. In the last ten months or so, he had been working as a labourer for a plumber and was considering obtaining formal qualifications in that trade.

62. Counsel referred to the offender’s relationship history and his one daughter who is now 27 years of age and residing interstate.

63. The offender had been receiving treatment from Ms Taoube, clinical psychologist and attended upon her on ten occasions since 30 October 2024. She had opined that he appears to be suffering from Prolonged Grief Disorder which had been having an impact throughout his life. Ms Taoube opined that from early childhood the offender had suffered a pattern of traumatic experiences and emotional instability that had a significant adverse impact on his mental health. She opined that his conduct in relation to Counts 5 and 6 were brought about by his psychological condition at the time “as a means for him to deal with his unresolved PGD and an ongoing aggravation of that disorder arising from the death of N, which he saw as his fault. He felt a bond and comfort in his interaction with CB. This was a significant factor in him crossing the line in respect of CB, who despite being a student of his at the time, was someone who provided him with an empathetic interpersonal connection”.

64. The offender intended to continue his treatment with Ms Taoube. It was submitted that he has good prospects of rehabilitation.

65. Counsel referred to the offender spending six months in custody on remand and referred to sentencing statistics issued by the Judicial Commission of NSW as being of limited direct value due to wide range of conduct falling within the charges.

66. Counsel submitted that a Community Correction Order was within the range of appropriate sentencing for Count 1. In respect of Counts 5 and 6, the offender had been detained in custody for a period of about 7.5 hours and had been stood down from teaching without pay. Having regard to the low objective seriousness of the offending, counsel submitted the offender should be convicted without any further penalty being imposed pursuant to s10A of the CSPA.

67. In his oral submissions, counsel for the offender submitted that age was a common factor in respect of Counts 5 and 6 in assessing the objective seriousness of the offence. With respect to the submission regarding acquiescence of the victim, counsel submitted that the offending did not occur in isolation but rather should be taken in context. This was not a case where there were threats or compulsion, rather the offending arose from the circumstances having regard to the relationship he had with the victim. Counsel submitted there was no capacity for a finding of coercion, and the kiss on each occasion lasted for one second only. It was submitted that the circumstances in which the offending occurred were extremely unusual and arose out of a tragedy, namely the suicide of the student, N. This was further explained by the psychologist’s report in that the offender wanted to be relatable to students and felt an allegiance with them as evidenced by the favourable comments he had received from both students and parents. It was clear from the evidence that he was regarded as a teacher being relatable, fun and popular and the observations of other teachers amounted to disapproval of his conduct.

68. In respect of the offence in Count 1, counsel submitted that the Court would not derive from the jury verdict that the jury accepted the entirety of the victim’s evidence but only the elements of the offence. Counsel submitted there were issues with the credibility and reliability of the victim, particularly regarding her evidence that sexual intercourse took place throughout 2014 on a weekly basis. The offender therefore disputed a number of aspects of the facts proposed by the Crown to be derived from the jury verdict. As it is for the Court to determine what facts are to be derived from that verdict, I do not propose to deal with the ambit of this dispute.

69. Counsel conceded that the particulars of the grooming charge was reprehensible conduct, however the section covered a wide range of offending. The offender had since spent six months in custody in respect of this offence having been acquitted of all other charges but for Counts 5 and 6, to which he entered pleas of guilty. Therefore time spent in custody was not relatable the matters of which he was acquitted.

70. Counsel submitted that the objective seriousness of the offending was at the lower range for this offence, which occurred on a background of behavioural issues. The offender had made progress with his rehabilitation in that he had received treatment over ten sessions with Ms Taoube and had a need for that treatment to continue. This was the gravamen of the submission that he should remain in the community rather than being subject to a further custodial sentence.

71. Counsel submitted that time served should be taken into account in imposing a Community Correction Order for the offence which was not a “slap on the wrist”. If he were to breach any conditions imposed, he would be subject to being re-sentenced.

72. Counsel submitted that if a sentence of imprisonment is imposed, then a finding of special circumstances should be made given that he is otherwise of good character having no similar prior offences and this would amount to his first time in custody following conviction and a lengthy period of supervision would assist him to continue his treatment program.

Determination

55. The offender is to be sentenced in respect of the principal offence on facts to be derived by me from the evidence at trial and the jury verdict. Any finding of facts made against the offender must be arrived at beyond reasonable doubt and any reasonable doubt must be resolved in favour of the offender. By contrast, the offender bears the onus of proving on the balance of probabilities facts which are submitted to be in his favour – see The Queen v Olbrich (1999) 199 CLR 270.

56. The offender was born in 1968 and in 2014 was employed as an English teacher at Elderslie High School. He was aged 45 years at the time of the offence. The victim was born in 1998 and was a student at Elderslie High school from 2011 to 2016. At the time of the offending she was 15 years of age. The offender did not teach the victim directly, however he would supervise her at times, for example at sport. She would ask him to look at her creative writing as a result of which they formed a friendship speaking to each other during recess or lunch at school. The offender provided the victim with gifts such as food, drinks, cigarettes and $50 notes.

57. The offender would compliment the victim on her physical appearance and in early 2014 asked the victim for her mobile phone number. The offender would call the victim very often after school and on an occasion about a month and half before her 16th birthday, he called the victim late in the evening. During that phone call he started banging his penis on a table or countertop and said to the victim, “Can you hear that? That’s how hard you make me”. The offender then asked the victim to touch herself, which she pretended to do, and he masturbated whilst on the phone to her.

58. This was the conduct by which the offender exposed the victim, who was 15 years of age, to indecent material intending to make it easier for him to procure her for unlawful sexual activity with him. By its verdict, the jury rejected the offender’s evidence that he never phoned the victim. His evidence on sentence that all of his evidence at trial was “true and accurate” cannot therefore be accepted.

59. The Crown relied at trial on a great deal of evidence to establish the offender had a tendency to have a sexual interest in high school students and a tendency to act on that sexual interest, however that evidence is irrelevant for the purpose of sentencing this offender.

60. The Crown relied on a statement of agreed facts in respect of the two offences of sexual touching pursuant to s73A(1)(a) CA. In respect of each of those offences, the victim was a student at Fairfield High School in year 12 and she was 17 years and 4 months of age. The offender was the victim’s English teacher from year 10 until year 12 and had taught her advanced English, English extension 1 and English extension 2. The agreed facts reveal that on 18 April 2021 the victim caught a train to Bankstown and met the offender. They walked from the station to his apartment and as they entered the door of his apartment the offender hugged the victim, and they kissed each other on the lips for one second. The agreed facts contained a still image of the incident taken from CCTV footage.

61. At 4:19 p.m. the offender and victim walked together to Bankstown Railway Station. Prior to the victim leaving the offender kissed the victim on the lips for one second and a still image taken from CCTV comprised part of the agreed facts. Having viewed the whole of the CCTV footage during the trial in respect of Counts 5 and 6, it is clear that on the morning of 18 April 2021, the offender met the victim at Bankstown Railway Station and then walked to his apartment. It was only when they entered the front door of the apartment that the offender hugged the victim and they kissed each other on the lips for one second. Having regard to the circumstances, I do not accept the offender’s evidence that what occurred was “just a kiss hello”. Nor do I accept that the offence in Count 6 was “just a kiss goodbye”, having regard to the CCTV footage which clearly showed at the time the victim and offender arrived at Bankstown Station that the victim was walking away from the offender when he motioned to her to return to where he was standing and again, they kissed on the lips. I therefore do not accept the offender’s evidence that it was “just a kiss goodbye”.

62. Having regard to the relationship of teacher and school student, notwithstanding that the victim was not being taught a school subject directly by the offender, the age difference of 30 years between the offender and the victim and the predatory nature of the conduct, the objective seriousness of the offending in Count 1 fell within the mid-range of an offence pursuant to s66EB CA.

63. The offending in both Counts 5 and 6 fell in the low range of objective seriousness for offences pursuant to s73A(1)(a) CA and below the middle of the low range, but not at the low end of objective seriousness for such offences.

64. A common aggravating factor for each of the three offences pursuant to s21A(2) of the CSPA was in each case, the victim was vulnerable (s21A(2)(l)).

65. It was an aggravating factor in Count 1 that there was an abuse of a position of trust or authority by the offender pursuant to s21A(2)(k) of the CSPA. I accept that breach of trust was inherent in respect of Counts 5 and 6 and should not be double counted.

66. In respect of all three offences there were common mitigating factors to take into account pursuant to s21A(3), namely the offender had no relevant prior offences (3)(e), the offender was prior to the offending a person of good character (3)(f) and (3)(g), the offender is unlikely to reoffend, given that he will not work as a teacher of children again.

67. I have taken into account the maximum penalties of 2 years imprisonment for Counts 5 and 6 and the maximum penalty of imprisonment for 10 years for Count 1. The maximum penalties reflect the seriousness with which Parliament regards such offending conduct and are guideposts in the sentencing process.

68. I have had regard to the offender’s plea of guilty in respect of Counts 5 and 6, which entitled him to a 5% utilitarian discount on sentence and reflected some remorse on his part. I also accept that he has expressed some limited remorse in his evidence, however his evidence that at the time, as a teacher of almost 25 years’ experience, he knew that the conduct in Counts 5 and 6 breached the Department of Education Code of Conduct, but was not illegal, was exculpatory and tended to minimise his culpability for the offending conduct.

69. I accept the Crown’s submissions that the lack of complaint of the offender’s conduct at the time of the offending in Count 1 is irrelevant to sentencing and that the offender’s submission that the victim acquiesced in the offending conduct was relevant to the assessment of objective seriousness should be rejected as consent is no defence to the charge. I have therefore not taken those matters into account.

70. The loss of the offender’s employment as a teacher does not amount to extra-curial punishment to be taken into account on sentence. In Wanstall v R [2024] NSWCCA 167, Sweeney J (with whom Stern JA and Cavanagh J agreed) dealt with a divergence of views in appellate courts about the significance of the loss of an offender's career in sentencing. Her Honour referred, inter alia, to the High Court's decision Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 where McHugh J said at [54] that it was "legitimate to take into account a loss of employment or profession as part of an offender's personal circumstances". In Kearsley v R [2017] NSWCCA 28 Macfarlan JA had stated that the loss of the offender's profession was a relevant subjective consideration, "but subjective considerations could not cause inadequate weight to be given to the objective circumstances of the offences". Further, in Khorami v R; R v Khorami [2021] NSWCCA 228 Bell P (as his Honour then was) said referring to Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21,

"The Applicant's future unemployability in the… profession also constitutes a significant element of extra-curial punishment that will inevitably flow from the convictions." (at [40])

71. Sweeney J also referred to R v Talia [2009] VSCA 260 where the Victorian Court of Appeal accepted that disqualification from an offender's chosen profession constitutes extra-curial punishment, "although the Court distinguished between a disqualification resulting from criminal conduct in the course of employment and criminal conduct remote from that employment but having that consequence" (at [48]). As this offending conduct clearly arose in the course of the employment of the offender as a teacher, a position of special care in respect of school students, it cannot be taken into account as extra-curial punishment but rather is the inevitable consequence of his offending.

72. I accept that the offender has progressed his rehabilitation by way of counselling treatment from Ms Taoube and that his prospects for rehabilitation must be regarded as good. I further accept that any risk of recidivism for this type of offending must be considered low.

73. Whilst there are subjective features to be taken into account, the report of Ms Taoube and her opinion that the offender suffered features of a Prolonged Grief Disorder was focused, as conceded by the offender’s counsel, on Counts 5 and 6. Indeed nearly all of the bereavements referred to in her report occurred after the offending in Count 1 and it was not contended that such a diagnosis, contributed in any material way to the offending in Count 1.

74. Criticism was made by counsel for the offender of the ambit and content of the VIS of the victim of Count 1, which was read in court by the support person. The prospect that it was produced with the benefit of an AI tool was raised, however no finding could possibly be made regarding that contention. The VIS did outline significant emotional and psychological sequalae suffered by the victim, SH as a result of the offending in Count 1, however the Crown conceded that it did not amount to emotional harm in excess of what would ordinarily flow from such offending conduct. Notwithstanding that, it was still a poignant example of the emotional impact on a victim of child sexual offending in this case, grooming. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, the Court of Criminal Appeal said at [110]:-

“This court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G (2008) UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R (2011) VSCA 157; 32 VR 361.”

I have not, however taken the VIS into account so as to increase the moral culpability of the offending. Having regard to the breach of trust involved, the age difference and the seriousness of the conduct, the offender’s moral culpability for this offending was high.

75. General deterrence is important in sentencing for child sexual offending including grooming and sexual touching offences, particularly where there has been a breach of trust or authority. A clear message must be sent to the community that where persons who are entrusted with teaching children breach that trust, that Parliament has prescribed lengthy periods of imprisonment as maximum penalties and that the Courts will impose condign punishment in appropriate cases. Specific deterrence is also important in that the offender must understand the gravity of his offending conduct and not minimise it.

76. Section 25AA of the CSPA provides relevantly as follows:-

25AA Sentencing for child sexual offences

(3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(5) In this section—

“Child sexual offence” is defined to include an offence under a provision of Division 10 of Part 3 of the Crimes Act which includes s66EB.

77. Neither the Crown nor counsel for the offender referred to the section, however I am obliged to sentence the offender in respect of Count 1 (which occurred in 2014) having regard to the section in accordance with the Court of Criminal’s decision in R v Cattell [2019] NSWCCA 297 at [103]-[111], notwithstanding that s66EB is a more recent offence provision in the Crimes Act.

78. I am satisfied in respect of the offending in Count 1 that, having considered all possible alternatives that no penalty other than imprisonment is appropriate pursuant to s5 of the CSPA. I intend to impose a sentence of 2 years imprisonment for that offence. I make a finding of special circumstances pursuant to s44 of the CSPA and reduce the statutory ratio between head sentence and non-parole period. I intend to impose a non-parole period of 15 months imprisonment. Taking into account the 6 months the offender spent in remand custody, that will commence on 9 April 2025 and expire on 8 July 2026. The balance of term will be 9 months to commence on 9 July 2026 and expire on 8 April 2027.

79. In respect of Count 5, I intend to impose a Community Correction Order pursuant to s8(1) of the CSPA for a period of 11 months. That order will commence today and will subject to standard conditions.

80. In respect of Count 6, you will be convicted but no further penalty applied pursuant to s10A of the CSPA.

Orders

81. I hereby order as follows:-

82. You are convicted of Count 1, an offence pursuant to s66EB of the CA.

83. I impose a non-parole period of 15 months imprisonment to date from 9 April 2025 and expire on 8 July 2026.

84. The balance of term will be a period of 9 months to commence on 9 July 2026 and expire on 8 April 2027.

85. In respect of Count 5, you are convicted of an offence pursuant to s73A(1)(a) CA.

86. Pursuant to s8(1) of the CSPA instead of imposing a sentence of imprisonment, you are to comply with a Community Correction Order for a period of 11 months. The standard conditions of the Order will apply:-

(a) You must not commit any offence; and (b) You must appear before the Court if called upon to do so at any time during the term of the order.

6. If you fail to comply with the conditions of the Order, further action may be taken against you. This may require you to return to Court to be re-sentenced.
7. You are convicted of Count 6, an offence pursuant to s73A(1)(a) CA.
8. Pursuant to s10A of the CSPA, no further penalty is imposed.
9. I make an order pursuant to s3C of the Child Protection (Offenders Registration) Act 2000. The reporting period is for 15 years from the date of the offender’s release from custody.

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