Having observed that the victims had done nothing to encourage the applicant's advances and that they had obeyed him because they were "terrified", his Honour continued:
He seems to have thought that it was his entitlement to act as he did. All these offences were well planned, predatory and involved a breach of trust.
16 It is true that the expression "breach of trust" is something of a term of art in this context, recognising the seriousness of offences of this kind committed by a man whose relationship with the victim is one of authority or influence. However, I do not understand his Honour to have found that the relationship between the applicant and his victims fell into that category. His reference to "breach of trust" appears to have been simply to the trust which, he had earlier said, the victims were entitled to have in being treated by the applicant appropriately and not as objects for his sexual gratification.
17 His Honour did not expressly deal with counsel's arguments about this matter in his remarks, and I do not read what he said as the resolution of that issue in favour of the Crown. He later referred to defence counsel's argument that the applicant might not have recognised the danger arising from the flattery and intimacy involved in his profession, only to reject it with the observation that there was not "even a hint of fault on the part of the victims" and that any flirting "was by the prisoner, and not by the victims". The Crown prosecutor in this Court adopted the argument of his predecessor in the sentence proceedings, submitting that the position of hairdresser/beauty therapist should be likened to that of a health professional. However, although it is significant that the applicant's profession may necessitate physical contact with a degree of intimacy, I would not characterise his position in that way.
18 Next, Mr Nicholson submitted that it was not open on the agreed facts to describe the offences as "well planned" and "predatory". He argued that, at most, they were opportunistic. This also had been the subject of argument by counsel before his Honour.
19 In my view, although the language is perhaps a little colourful, it was a characterisation of the offences which was open to his Honour. The notions of planning and predation go hand in hand, conveying that the applicant was on the look out for opportunities to derive sexual pleasure from his unsuspecting clients. In each case the offences were committed at the end of the working day, when he was alone with them. Indeed, in the case of AH, the inference is available that he prolonged her hairdressing until his staff had left the salon. In each case he then led his victim to a more private part of the premises: in the case of AC, the beauty parlour and, on the other occasions, the office. With RC and AC he achieved this by subterfuge: in the case of RC, by taking her book to his office and, in the case of AC, by inviting her to inspect his newly renovated beauty parlour.
20 For what significance it might have, he also offered wine to all the complainants except AH (whose age is not disclosed but who may have been younger than the others). However, it may be that offering wine to his clients was a common practice.
21 Lastly, Mr Nicholson took issue with a further observation by his Honour:
Each offence constituted a separate, well planned, predatory and cowardly attack on four different women, who were, in effect, his prisoners.
22 Mr Nicholson argued that the suggestion of imprisonment was also not available on the agreed facts. Indeed, he argued that his Honour had fallen into error by sentencing the applicant on the basis that, in addition to the offences to which he had pleaded guilty, he was guilty of the offence under s86 of the Crimes Act of detaining his victims for advantage, with which he had not been charged: cf The Queen v De Simoni (1981) 147 CLR 383. Again, while the expression used by his Honour may be rather colourful, I do not read this passage of his remarks in that way. Particularly is this so given that the term "prisoners" was qualified by the expression "in effect". That phrase was not inapt to describe a feature common to each of the incidents.
23 In the case of AH, the applicant locked the door of the salon and she felt uneasy. RC also found the salon door locked when she tried to leave after the indecent assault (although the applicant then escorted her out of the building by an internal lift). When JH told the applicant she had to go after the indecent assault upon her, he stood between her and the closed office door until he had finished masturbating. In the case of AC the salon door was also locked and, when the indecent assault upon her came to an end, he unlocked it to allow her to leave. The facts give rise to the inference that none of the victims felt free to leave while his sexual misconduct was in progress.
24 I am not persuaded than any of his Honour's observations lead to the conclusion that he erred in his assessment of the gravity of the offences. Nor, indeed, does the aggregate sentence suggest that he did.
25 As I have said, the remaining basis of the application is the assertion that his Honour erred in accumulating the sentence on the charge of attempted sexual intercourse without consent. Mr Nicholson argued that that sentence should have been concurrent with the sentence on the second charge, the indecent assault upon AH, as it was part of the same incident.
26 His Honour expressly considered the question of how the sentences should be structured, referring to Pearce v The Queen (1998) 194 CLR 610 and related cases. It is true that the sentences might have been structured differently, for example, by passing concurrent sentences on the charges relating to AH but accumulating them upon the sentences for the remaining charges. In that event, the aggregate sentence would have been no different.
27 Consistently with the policy behind s6(3) of the Criminal Appeal Act, it is not the function of this Court to restructure sentences passed at first instance if it makes no difference to the overall result. As Mr Nicholson realistically acknowledged, the only question for us is whether the aggregate sentence is manifestly excessive as a reflection of the totality of the applicant's criminality. I am not persuaded that it is. These were serious offences of their class, committed upon four women over a period of some twenty months. Even allowing for the fact that it was arrived at after a reduction for the applicant's pleas of guilty and his remorse, I consider that the overall sentence of six years imprisonment was within the discretionary range properly open to his Honour. Equally, the effective non-parole period of four years, while affording the applicant the benefit of a finding of special circumstances, appropriately reflected considerations of retribution and deterrence.
28 I would grant leave to appeal but dismiss the appeal.