R v SP [2004] ACTCA 16

R v SP [2004] ACTCA 16 - ACTCA 2004 case summary — Zoe

[39]

1. I have had the advantage of reading in draft the judgments of Gray J and of Gyles J. I agree with Gray J that no error of principle in the approach of the learned trial judge to the sentencing exercise can be identified.

2. In that respect I differ from Gyles J. Nevertheless, I agree with Gyles J that all the relevant factors, including the delay occasioned by an official decision not to pursue the matter through the criminal justice process, would not have justified the imposition of a head sentence of less than three years.

3. I would not wish to express a view critical of the authorities in circumstances where the parents of the victim were urging them to proceed administratively rather than by engaging the criminal justice system. Nevertheless, it was the wrong decision. It was not a matter for the education authorities acting alone to decide that the respondent's crimes did not warrant criminal action.

4. At the very least, the police and prosecution authorities should have been informed of the matter and given the opportunity to decide whether it was in the public interest to prosecute. It is to be hoped that such inaction will not occur in the future. The protection of children from sexual predation is too important to avoid or by-pass proper consideration of the public interest, not only in dealing with the particular case but also in the deterrence of others who may be tempted to offend as this respondent did. I do not suggest there can never be a case where the interests of the victim might not outweigh the public interest in condemnation and deterrence. This is not such a case.

5. Nor was there any compelling psychological disability from which the respondent suffered so as to make him an unsuitable vehicle for deterrent punishment.

6. It was simply a case of a teacher giving in to temptation and taking advantage of a situation in which an adolescent girl persuaded herself that she was in love with him. Such "crushes" are not uncommon. The duty of the teacher, to be strongly reinforced by the criminal justice system, is to resist that temptation and to discourage such an inappropriate relationship.

7. This the respondent failed to do. It may be that he recognised that he was, as a result, unfit to be a teacher and so resigned. But the damage had been done.

8. The duty of the court is to strongly reinforce the principle that those in a position of trust must not abuse that position. It should be understood that, save in truly exceptional circumstances, such conduct as that exemplified in this case will be visited with condign punishment.

9. In the circumstances, although the trial judge considered all relevant matters and identified and characterised them accurately, I consider that general deterrence was given too little weight, resulting in a manifestly inadequate overall sentence.

10. It should not have been wholly suspended.

11. I do not wish to comment on the portion that would have been suspended but for the issue of delay and rehabilitation. However, given the matters relevant to Crown appeals, and in light of those matters, I consider that the result proposed by Gyles J is appropriate for the reasons he has stated. I therefore agree, albeit reluctantly, with the orders his Honour proposes.

[44]

14. In the school year 1991, the respondent was a physical education teacher at Campbell High School. The respondent was aged 36 in November 1991. The complainant was a student at the school in year 10 and in the respondent's class for a subject called 'Outdoor Education'. The respondent turned 15 on 14 August 1991. The curriculum in respect of Outdoor Education included voluntary weekend camping trips to various locations, including National Parks in the vicinity of the Australian Capital Territory.

15. In about late August or early September 1991 as part of that program, the respondent and a number of teachers and students, including the complainant, travelled to Jervis Bay on a camping trip. On the way the complainant stated that she was cold, the respondent put his arms around her shoulders and hugged her. He kept his arm around the complainant for the duration of the two hour journey. Later that night, after the remainder of the group had gone to bed, the respondent started kissing the complainant. The respondent then had sexual intercourse with the complainant inserting his penis into her vagina.

16. Between August 1991 and December 1991, the respondent would often collect the complainant after school in his car and take her to locations in Canberra to have sexual intercourse. One such occasion was at Yarramundi Reach near Lake Burley Griffin, another at Pine Island at Tuggeranong. A further occasion during this period involved the respondent taking the complainant to his house after school where the complainant's parents had been invited by the respondent and his wife to dinner that evening. An act of sexual intercourse took place in the respondent's bedroom. On another occasion in late October or early November, sexual intercourse took place after school in a flat belonging to a friend of the respondent in Reid. In late November or early December there was also an occasion where the respondent arranged to meet the complainant in the physical education teachers' staff room and then took her into the equipment store where sexual intercourse took place.

17. In early 1992 the complainant told her parents about the incidents. The parents requested that the ACT Schools Authority investigate what had occurred. In 1992, the respondent had taken a teacher exchange posting in the United Kingdom. He had left Australia in December 1991 and returned in early 1993. During the time that he was in the United Kingdom he was made aware of the allegations by a letter from the education authorities in October 1992. When he returned to Australia he was told by his union representative that if he were to resign, the parents, and presumably the education authorities, would let the matter rest. On 12 December 2002, the complainant made a formal complaint to the Sexual Assault and Child Abuse team of the Australian Federal Police and these proceedings were taken consequential upon that complaint.

[55]

Nonetheless, the prisoner was a teacher at the time, and he was 35 years of age, that is, some 20 years older than the complainant. It need scarcely be said that the offences involve serious breaches of laws which are enacted with a view to protecting young people, such as the complainant, from the conduct of older people such as the prisoner.

Furthermore, this is not a case of someone who was only slightly older than the complainant, as often used to come before the court when two teenagers had formed a relationship at a time when one of them was under 16. The age gap is substantial. It is also a case in which, as the learned Crown prosecutor has pointed out, there was a serious breach of trust. Parents are entitled to expect that their teenage children will go to school without having to encounter any risk of the formation of sexual relationships with teachers who may be tempted to take advantage of the special position of trust in which they are placed by the community. That much was clearly conceded by the prisoner in evidence. As he said, and I quote, 'You can't defend any relationship of this kind between a teacher and his pupil'. That observation is undoubtedly correct. Such a relationship is inevitably wrong, and if the young person in question is under 16, it is also a criminal offence carrying heavy penalties. Hence, I agree completely with the learned Crown prosecutor's submission that conduct of this kind must be denounced in very strong terms. ...

I have given serious consideration to the Crown's contention that the breach of trust in this case was so profound and the need for the community to be protected from further conduct of this kind is so clear that, even after taking into account all of the other factors to which I have referred, a sentence requiring him to immediately serve a term of imprisonment is inescapable. As I hope I have made clear, I have considerable sympathy for those submissions. It cannot be stressed too strongly that any teacher who forms a sexual relationship with a person under the age of 16 should expect to be sentenced to a term of imprisonment and that, save in exceptional circumstances, it will be inappropriate to wholly suspend that sentence.

[94]

In the school year commencing January 1991 and ending December 1991 (SP) (DOB 19th Nov 1955) was a physical education teacher at Campbell High School and the complainant ... (DOB 14th August 1976) was in year 10.

(SP) was the complainant's physical education teacher and her teacher for a subject called Outdoor education. The curriculum for that subject included voluntary weekend camping trips to various locations, including National Parks in the vicinity of the ACT.

O3/4342

In about late August early September 1991 as part of the Outdoor education program, (SP) and a number of teachers and students, including the complainant travelled to Jervis Bay on a camping trip. On the way to Jervis Bay, after the complainant stated she was cold, (SP) put his arms around her shoulders and hugged her. He kept his arm around the complainant for the duration of the journey, which was about two (2) hours.

After the group had arrived at Jervis Bay they set up camp and later in the evening after the remainder of the group had gone to bed, (SP) started kissing the complainant. (SP) and the complainant went to the shower block, which was near the camping area and undressed. (SP) had sexual intercourse with the complainant by inserting his penis into her vagina.

O3/4343

During the period, August 1991 to December 1991, (SP) would often collect the complainant after school in his car, take her to a location in Canberra, and have sexual intercourse. On one occasion (SP) took the complainant to Yarramundi Reach near Lake Burley Griffin. (SP) and the complainant went into the trees with a blanket where they partially undressed. (SP) had sexual intercourse with the complainant by inserting his penis into the complainant's vagina. Whilst (SP) and the complainant were having sexual intercourse they were interrupted by male. After the male had left (SP) and the complainant got dressed and left the area.

O3/4344

On one occasion during this period (SP) took the complainant to his house after school. The complainants' [sic] parents had been invited by (SP) and his wife to dinner that evening. Shortly after (SP) and the complainant arrived at his house they went into his bedroom, undressed and (SP) had sexual intercourse with the complainant by inserting his penis into the complainant's vagina.

O3/4345

On another occasion during the period August 1991 to December 1991 (SP) and the complainant went to Pine Island near Tuggeranong in the ACT. Whilst (SP) and the complainant were lying on a beach near the river, (SP) had sexual intercourse with the complainant by inserting his penis into her vagina.

O3/4346

In late October or early November 1991, after school had finished for the day, (SP) took the complainant to a flat in Reid ACT. This flat belonged to another teacher who at that time was a friend of (SPs) and, who was on holiday in New Zealand. (SP) had the key to the flat. (SP) and the complainant went into lounge room of the flat, lay on the lounge and (SP) had sexual intercourse with the complainant by inserting his penis into her vagina. Later the complainant left the flat and walked into Civic where she met her father.

O3/4347

In late November or early December of 1991 the complainant waited for (SP) at Campbell High School. (SP) had arranged for them to meet in the Physical Education Teachers staff room, which is located in the school gymnasium. (SP) took the complainant into the equipment store, which is located in the gymnasium. After they went into the store room both the complainant and (SP) undressed and he had sexual intercourse with the complainant by inserting his penis into her vagina.

There were a number of other occasions during the period from August to December 1991 where (SP) and the complainant engaged in sexual intercourse.

[108]

And did you receive a letter from the teaching authorities that outlined the allegations?---Yes, I did, in October of that year as I remember, your Honour.

HIS HONOUR: Sorry, October of what year?---Of 1991.

Sorry? ---Of 19 - of sorry, 1991.

October of 1991?---Yes.

You received a letter from the education authorities referring to this incident.

MR PURNELL: I think that's '92 your Honour?---Sorry, '92, I beg your pardon, '92, yes, I beg your pardon.

And at this stage, you'd been in the UK for about 9 months or thereabouts? ---That's correct.

Teaching?---Yes, that's correct.

HIS HONOUR: When were the charges laid?

MR PURNELL: Just recently, your Honour.

HIS HONOUR: After the department had known of them, of the situation for a decade? ---That's correct.

MR PURNELL: I think that's common, your Honour. The letter that you received, did it suggest a response by you or was it simply a notification of the allegations?---As I understood it, and I made a couple of phone calls to people in the ACT at the time, they were teaching colleagues who made some enquiries on my behalf. I understood it that they were just outlining a set of allegations that would be dealt with upon my return.

And did you return from the UK in January of '93?---I did, your Honour, early '93.

And when you came back did you resign?---Yes, I went to see Clive Hagar, who was my union representative, and we had a discussion and I resigned instantly.

Now in relation to that discussion, was there told to you what you understood was a demand from (the complainant's) parents in relation to your teaching future?---That's correct, I was told - - -

What was that?---I was told that the student and parents involved quote, unquote, didn't want to hang me out to dry, they merely believed that I shouldn't be in teaching any more, which I thoroughly concurred with, and I'd already decided I would resign anyway, and they wanted me to resign from teaching so it fitted in neatly with what I intended to do anyway.

Now - - -?---Sorry, could I just add one thing, your Honour. I was also told that - by Clive Hagar that if I were to resign that they would let the matter rest and that would be the end of it. Sorry.

[112]

It is difficult to see why lapse of time between commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender. There are two obvious cases in which that will be so and in which, consequently, it has been said that that unfairness should mitigate the sentence which should otherwise be imposed.

The first is where there is delay between the date of apprehension of the offender, or first indication to him by some person in authority that he is likely to be prosecuted, and the date of sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called in question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly. Duncan (1983) 9 A Crim R 354 is an example of that. There the offender was advised, when he was declared bankrupt in 1979, that his conduct constituted the offence for which he was eventually convicted and sentenced in 1982. So too are Crawley [1930] HCA 3; (1981) 5 A Crim R 451 at 458, Jones and Harris (1989) 41 A Crim R 1 at 19 and Kane [1974] VicRp 90; [1974] VR 759 at 767. The rationale for mitigation in these cases is analogous to that for which, in jurisdictions where a right to a speedy trial is constitutionally or legislatively guaranteed, proceedings may be stayed because of such delay. See for example Barker v Wing [1972] USSC 146; 407 US 514; US v Marion [1971] USSC 195; 404 US 307; Mills (1986) 26 CCC (3d) 481. See also Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23; 41 A Crim R 307; Braham (1994) 73 A Crim R 353, by contrast, is an example of a case in which the offender, because initially a nolle prosequi had been entered against him, probably thought during the subsequent period of delay until his further arrest, that "he had escaped the clutches of the law" and in which in consequence, it was held that the delay should not mitigate the sentence: at 365-366. See also 356. See also Glennon [1993] VicRp 6; [1993] 1 VR 97.

The second is where the time between commission of the offence and sentence is sufficient to enable the court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress. That factor was referred to by Street CJ in Todd [1982] 2 NSWLR 517 at 519, 520 in a passage cited with approval by the High Court in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468 at 470-471. See also Bell [1982] Qd R 216 at 220; (1981) 5 A Crim R 347 at 351; Quinlivan (unreported, Court of Criminal Appeal, Vic, File No 291 of 1994, 23 May 1995). Duncan is also an example of this.

[113]

63. It is difficult to see unfairness in this sense in the present circumstances. The respondent believed that the matter was 'dead and buried' by the negotiations his union representative had conducted. He then went about his business on that footing until the matter was brought up again. He simply relied upon inaction by others and lived a normal life thereafter. It would send the wrong message both to persons in positions of trust, who abuse that trust for sexual gratification, and to their victims, if lenient treatment were to be accorded to those who do not bring the crime to the attention of the prosecution authorities and rely upon the inaction of others to avoid it coming to light. It is now notorious that public and private education authorities throughout Australia (and elsewhere) have been ineffective in dealing with the problem of sexual abuse by teachers and others in positions of authority with the result that those teachers may evade prosecution. That failure should not be turned to the advantage of offenders and so impede the proper administration of justice.

64. There is no suggestion of any particular delay since the complaint to police. This is not a case in which the respondent has even suffered any concern about the sword of Damocles hanging over his head. He thought that he was 'off the hook'. He should have been punished shortly after the offences. He escaped that punishment. His life would be disturbed by serving a term of imprisonment now. His life would have been disturbed if he had been sentenced at the appropriate time. This is not a case in which ill health or other such circumstance has arisen in the meantime. I do not detect any unfairness to the respondent in what has occurred. He is the author of his own misfortune in every respect.

65. In relation to delay, it needs to be borne in mind that, if the respondent had confessed his actions to the prosecuting authorities on return from England in 1993, he would have served his punishment long before this and then been able then to reorder his life. The fact that he did not do so, and ran the risk that the prosecuting authorities may become involved later, should not count in his favour (cf R v D'Arcy [2001] QCA 325; (2001) 122 A Crim R 268 per McPherson JA at [147]).

66. Rehabilitation in a case of this kind is a difficult topic. The respondent took the step of removing himself from a situation of teacher/pupil relationship. There is nothing to indicate that his change of employment to the real estate industry has been to his particular disadvantage. He was plainly unsuited to being in contact with teenage girls. That step having been taken, and bearing in mind his antecedents, it was then, and still is, inherently unlikely that he would re-offend. The primary judge was prepared to find that his present remorse is genuine. This might be accepted, although the primary judge does appear to have read too much into the counselling which he undertook. That was plainly triggered by the death of his mother, not the late onset of remorse for his conduct in relation to these offences. Remorse is some indication of rehabilitation in the sense of reformation of attitude.

67. The principal factor which appears to have influenced the primary judge in the sentencing decision was the present personal situation of the respondent. That is revealed by the final paragraph of the primary judge's remarks upon sentencing which were as follows -

[126]

77. It may be granted that, because of the width of the discretion given by s 403(1)(b) of the Crimes Act 1900 (the Act), a sentencing judge is entitled to have regard to factors that have been considered in relation to the head sentence when considering whether to suspend the sentence. In this sense there may be double counting. However, going through that process should not lead to an exaggeration of subjective and merciful grounds in mitigation of sentence. The purposes for which a sentence may be imposed laid down by s 341 of the Act remain paramount. In my respectful opinion, the primary judge fell into error by not asking himself whether those purposes were properly served by wholly suspending a sentence which had already taken full account of subjective factors caused by the effect of delay including the interests of the respondent's family. In my opinion, the only reasonable answer to that question is 'no'. The nature and circumstances of the offence and the course of conduct involved required that a significant term of imprisonment be actually served for the purposes of punishment, general deterrence and denunciation. In my view, that period could not have been less than 18 months for the statutory purposes to be served. In considering suspension of sentence it is relevant to take into account the fact that an offender of the antecedents and place in life of the respondent is most unlikely to re-offend or otherwise to breach the recognisance and is not in need of and will not benefit from parole supervision in the usual way. That very much reduces the actual punitive effect of, and rationale for, a suspended sentence (Brewer at [21]-[22]).

78. The principles governing appellate intervention are well known. The cases are referred to in Brewer at [3]-[5] and in the judgment of Gray J. I have indicated in the course of these reasons some respects in which, in my opinion, the primary judge fell into error of principle. Fundamentally, however, in my opinion, the sentence was manifestly inadequate. The question remains as to whether the sentence should be increased. There are special principles governing the grant of Crown appeals referred to in Lappas at [32]-[34] and [119]-[121] that recognise that it will not always be right to increase a sentence to that which should have been awarded at first instance. Furthermore, service of a significant period of actual custody may affect the appropriateness of the condition of suspension of the sentence as to payment of compensation to the complainant. In all the circumstances, and with some hesitation, I would not disturb the sentence in this case.

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