Smith v R

Court of Criminal Appeal (NSW)|2022-02-03|Before: Johnson J, Harrison J, Fagan J

sdiction: Criminal Date of Decision: 4 September 2020 Before: Shead SC DCJ File Number(s): 2019/50727

Facts

The following summary is taken from an agreed statement of facts that was before the sentencing judge and from her Honour's Remarks. The names of people and places and some other details are omitted in order to protect the identity of the young person against whom the offences were committed.
In late 2018 and early 2019 the applicant had held her position as a physical education teacher at a public high school for six years. The victim was a student at the school aged 14 years and approaching 15 when the offending commenced. He was aged 15 when Sequence 10 was committed in January 2019. The applicant never taught the victim. She was aware that he was under 16 throughout the charge period.
In 2018 Term 4 ran from 15 October to 19 December. At some time in that period, following a conversation between the offender and the victim at school, the victim added the offender on his mobile phone application "Snapchat" and the offender accepted this. The two then commenced exchanging simple greetings, both on Snapchat and when they encountered each other at school.

Sequence 1 - grooming

After approximately one week the messages took a sexual turn when the victim sent to the offender a photograph of his erect penis. She responded with an image of her bare breasts, covered by her hands. The victim then sent another photograph of his penis and she sent one of her fingers touching her vagina on the outside of her underwear.
One day later the offender sent the victim a close-up image of her breasts partially covered by her hand and the victim responded with another photograph of his erect penis. On the same day the offender sent another photograph of herself holding her breast. A further week later the victim sent to the offender a video of himself masturbating and she responded with a video of herself squeezing her breast. After about two days the offender sent the victim a video of herself "rubbing the outside of her vagina whilst wearing underwear" and after approximately another week the victim sent an image of himself naked and the offender sent a photograph of her breasts.
The exchange of sexual images described above took place over 2 ½ weeks and it concluded by about 22 December 2019, when the victim went on holiday with his family. He then did not have Internet access for about two weeks. There were further exchanges of such images in the last two weeks of January 2019, during the school holiday, and in the first two weeks of Term 1, between 29 January and 13 February 2019. These additional exchanges were all part of the conduct that constituted the grooming offence in Sequence 1. The conduct spanned in total about three months.

Sequence 8 - indecent assault

At some time during the first 2 ½ weeks of Snapchat exchanges the victim on one occasion left his classroom, ostensibly to get a drink, and went to a storeroom where the offender was working on a computer. They had a brief conversation and then kissed. The kissing was charged as Sequence 6 on the Form 1. The offender pulled down her shirt to show the victim her cleavage. He "placed his hand on the outside of the offender's pants and [she] placed her hand over the victim's pants". The encounter lasted no longer than five minutes. At its conclusion the victim returned to his classroom.

Sequence 10 - sexual touching

On an occasion within the last three weeks of the school holiday, the offender and the applicant met in a car park. She was seated in the driver seat of her vehicle and he stood outside. They spoke for a while before kissing on the lips, which was charged as Sequence 11 on the Form 1. The victim touched the offender on her breasts outside her shirt; she attempted to pull the shirt down and showed the victim her cleavage. The victim placed his hand on the outside of the offender's pants between her legs while she was seated and she "touched [his] penis on the outside of his pants".

Cessation of the offending conduct

On an occasion during the first week of Term 1, at school the offender attempted to kiss and to touch the victim sexually. He avoided the physical contact, although at this time the two were still exchanging sexual images on Snapchat. This attempted contact, early in Term 1, is not the subject of a charge.
On 14 February 2019 the offender was aware that police wished to speak with her. When the victim phoned her that day she told him that the police were at her home and that he should not tell anyone what had occurred between them as they would both "get into trouble". She asked the victim to delete her number. The offender spoke to police later that day and volunteered that she was aware that an explicit video of herself was circulating at the high school. Police interviewed the victim and were informed by him that he and the offender had exchanged intimate images. He subsequently informed his mother of the physical contacts with the offender and the mother reported this to police.
In a recorded interview with police following her arrest the offender provided a version of events similar to that given by the victim but endeavoured to minimise her own conduct and to portray the victim as the instigator of sexual interactions between them. She said that she was not sexually aroused by interactions with students and other young males but craved their attention.
Although not expressly revealed in the evidence, it is apparent that the laying of the charges led to the applicant's employment being terminated very shortly thereafter and her Honour proceeded on that understanding.

Applicant's personal background

The applicant did not give evidence on sentence. Her personal background was conveyed to the judge by tendering a report dated 26 May 2020 from Ms G Lattas, a forensic psychologist. This contained hearsay of the history that the applicant had supplied to Ms Lattas. Despite the second-hand form of the evidence, the learned sentencing judge accepted the personal history that is summarised in the following paragraphs. Her Honour was entitled to do so in the absence of any submission from the Crown that it was implausible or that it was contradicted by other evidence. Much of the history was consistent with observations made by mental health professionals during post offence assessments and treatment of the applicant in 2019 and 2020.
Her Honour accepted that the applicant's childhood and upbringing through teenage years was traumatic. Her father was an alcoholic who was violent towards her mother, necessitating that the applicant call the police on occasions. From the age of 10 the applicant was herself the victim of physical and emotional abuse by her father, as well as inappropriate sexual comments. During her school years the applicant sought counselling to support her in dealing with her father's abuse. The domestic conflict extended into the applicant's early adulthood. She took out an Apprehended Violence Order against her father at the age of 20. The applicant's older sister was highly intelligent and was treated differently by her parents. This resulted in a jealous preoccupation on the part of the applicant, with unstable reactive moods and unprovoked aggression towards the sister.
The applicant commenced self-harming at the age of 14. Through her adolescence she sought attention from males to an abnormal extent, considered by Ms Lattas to have been a manifestation of feelings of rejection, inadequacy and low self-worth. Ms Lattas opined that these feelings may have developed as a reaction to physical and emotional abuse within her family and to a perception that she was rejected by her parents and treated differently from her sister.
At the age of 16 the applicant commenced her involvement in the field of physical education, as a development officer and coach with the Australian Football League. She completed her Higher School Certificate followed by tertiary study for the degrees of Bachelor of Teaching (Secondary) and Bachelor of Health and Physical Education. She attained those degrees in 2013. The applicant drank alcohol regularly from about age 17 and engaged in binge drinking during her university years. She used illicit drugs from the age of 22.
While working as a teacher in the years 2013 to 2018 the applicant completed numerous professional development courses, resulting in accreditation for advanced levels of sports instruction, umpiring, first-aid proficiency, firefighting and general emergency training.
In about 2013, at age 21, the applicant commenced a relationship with a male partner who was three years older than herself. They married in early 2018. He worked away from home for extended periods, particularly during 2017. The relationship deteriorated during 2018. In that year the applicant began to talk to other men on social media and she joined a dating platform for married people seeking affairs. The applicant resorted to heavy alcohol use in the context of her marital difficulties in 2018. In October 2018 she learned that her husband was also on a dating website. After an argument they both agreed to stop such online interactions.
The applicant was evidently undergoing a marital crisis in late 2018 and early 2019. On Christmas Eve 2018 she became aware that her husband had sent sexually explicit photographs to their neighbour. He had previously had an intimate relationship with that person. The applicant told Ms Lattas that at this time she went through cycles of deleting everyone from her social media and being self-deprecating about her behaviour, then feeling lonely and seeking reassurance and affection by talking to men online and sending sexual images of herself. She was obsessed with attention from others. She "acknowledged a deterioration in her boundaries" during this period as she pursued online connections with males younger than herself, through which she could feel wanted and receive attention "without the relationship". These pursuits of attention were followed by extreme feelings of humiliation and self-disgust. The applicant's husband left her not long after the charges were laid.

Objective seriousness

The self-images transmitted by the offender in Sequence 1 were not of the most pornographic type. The physical contacts in Sequences 8 and 10 were momentary and involved touching on the outside of clothing. All of the conduct was motivated by the applicant's desire for attention rather than sexual gratification. On the other hand, the seriousness of the offences was heightened by the age difference between the victim and the applicant and by her position of trust in relation to his care. As a student the victim was inherently vulnerable to inappropriate advances from a female teacher 12 years his senior. He was entrusted by his parents and by the State to the staff of the school, including the applicant, for his education, not to be drawn into sexual activity out of his depth. The sentencing judge accepted that each offence was below the mid-range of seriousness for its type. The Crown conceded to the sentencing judge that the Form 1 matters were "not discrete offences". Her Honour justifiably found that they fell towards the lower end of the range of seriousness and did not give rise to any significant increment of penalty.

Borderline Personality Disorder

On 3 March 2019 the applicant was admitted to a hospital in her Local Health District. She presented with poisoning and suicidal ideation. She had overdosed on strong painkilling medications and Valium. The applicant was hospitalised for three days. Doctor Bhatt attended her and upon her discharge on 6 March 2019 he recorded the following: She did not show any symptoms or signs indicative of psychosis or affective illness. Her insight was assessed as poor throughout her admission. This lady has been going through psychosocial stressors (lost her job, going through legal matters and is on bail). Her history indicated Borderline Personality Construct marked by emotional dysregulation, strong sense of rejection, feelings of abandonment, difficulties in maintaining relationships, chronic self harming behaviour and splitting as a part of cognitive distortion. […] She is help seeking and is linked to private psychologist. […] This lady remains chronically vulnerable for self harm in context of Borderline Personality Disorder as compared to general population.
Ms Lattas recorded that in consultation on 15 April 2019 the applicant "endorsed symptoms consistent with a diagnosis of Borderline Personality Disorder". Ms Lattas summarised those symptoms as follows: persistent depressive mood for most of the day, feeling guilty if she enjoys herself, difficulty sleeping, eating disturbances, rumination about the past, recurrent suicidal ideation, poor boundaries and relationships, poor sense of identity, instability in relationships, chronic feelings of emptiness, impulsivity and recurrent self-damaging behaviours. Ms Lattas found that the applicant's symptoms and signs also met the diagnostic criteria for Post-traumatic Stress Disorder, Obsessive-Compulsive Disorder and Major Depressive Disorder, Single Episode. Other evidence before her Honour did not advance these differential diagnoses. The Borderline Personality Disorder assumed the greatest importance.
Ms Lattas was of the opinion that the applicant's disorders "have been long-standing and were present at the time of the index offences" and that the offences followed upon "an escalating pattern of reckless, self-destructive behaviours" over the preceding year. She concluded that the escalation appeared to be triggered by the process of separation from her husband "which may have activated insecurities around being unwanted and worthless". It was noted that the applicant had "experienced significant emotional distress and anxiety when separated from attachment figures during her childhood and adolescence".
In April 2019 the applicant's general practitioner, Dr Hood, referred her to the Centre for Psychotherapy of her Local Health District. She was assessed at the Centre on 29 April 2019 by Ms J Koorey, a Senior Social Work Therapist, whose assessment was endorsed by Ms V Ross, a clinical psychologist at the Centre. Ms Koorey's report of 30 April 2019 was before her Honour. It showed that at that time the applicant met eight of the nine diagnostic criteria for Borderline Personality Disorder, the only criterion not present being transient psychotic and/or dissociative states. The applicant also met the Centre's self-harm criteria. The applicant was willing to embark upon the two treatment approaches offered by the Centre but there was a waiting period for availability, which turned out to be slightly over one year.
Ms Koorey made the following observations of the applicant as at 29 April 2019, which was two months after she had been charged: Given [the applicant's] current raw state, her sense of shame re her recent charging by the police, the fragility of her marriage and the ongoing stressors associated with her court case it is strongly recommended she gain private psychological support at a local level from a private psychologist. If again acutely at risk it is also recommended she be referred to the [local area] Mental Health Team. This was discussed with [the applicant] who recognises the importance and need of same to help her through this very difficult and traumatic period.
In mid-2029 the applicant was referred by her General Practitioner to Dr R Cantali, a psychologist in private practice, who recommended that she undergo psychotherapy for Borderline Personality Disorder. Psychotherapy sessions commenced in July 2019 while the applicant was on the waiting list for treatment by the Centre for Psychotherapy of the Local Health District. Doctor Cantali noted the following symptoms of Borderline Personality Disorder: effective instability, negative relationships, self-harm and difficulties with her identity. [The applicant] experiences rapid, extreme mood swings, high emotional lability and difficulty controlling her anger. The applicant continued to receive fortnightly psychotherapy from Dr Cantali until very shortly before sentence was passed. The doctor considered that she had "made substantial changes" and that "her self-awareness and positive attitude towards change [had] resulted in good therapeutic outcomes". Dr Cantali expressed concern that benefits gained to that point would be lost if the program of treatment should be interrupted by full-time custody.
Doctor Bendit is a government medical officer of the applicant's Local Health District. He is a Staff Specialist Psychiatrist. His first report of 11 May 2020 confirmed the applicant's diagnosis of Borderline Personality Disorder and noted that she had been on the waiting list for treatment since April 2019. Her treatment commenced at the end of April 2020. At the time of sentence she was receiving 1-2 psychotherapy sessions per week in a program that Dr Bendit intended should continue for 14 months.
In a second report dated 19 August 2020 Dr Bendit said this (emphasis added): [I] have specific expertise in the diagnosis and treatment of borderline personality disorder. […] [The applicant] was initially referred by her general practitioner after making the diagnosis of borderline personality disorder. [The applicant] was then assessed in April 2019 by Ms Jennifer Koorey (Senior Social Worker) at my service who confirmed the diagnosis. When I first met [the applicant] on 29/4/20, I did my own assessment. She reported abandonment sensitivity, mood instability, chronic deliberate self-harm actions, unstable and intense interpersonal relationships, impulsivity and identity disturbance. Therefore she had 6/9 criteria for borderline personality disorder, which meets threshold for this diagnosis. Although borderline personality disorder can be treated with long-term psychotherapy, it does not remit with the passage of time over a year or two. It is regarded as a chronic condition, albeit one that can be reversed with appropriate treatment. Without appropriate treatment, the condition does not get better and the suicide rate is substantial, according to many community studies in different Western countries. At the assessment we discussed in detail [the applicant's] offence. Although the sexual contact with the student was over a period of time, it was consistent with the personality difficulty of impulsivity as seen in borderline personality disorder. The impulsivity does not refer to a specific event, but the difficulty in refraining from behaviour that brings rapid relief from profound dysphoria and self-image hatred. Each action is poorly thought through, which is what makes it impulsive, and driven by the need to find some kind of attractiveness and love, because the internal self-image is the opposite of that (intense self-hatred), which is unbearable in borderline personality disorder. [The applicant] has attended almost every session of psychotherapy between the end of April and currently. She has worked hard to honestly face her emotional difficulties which make up borderline personality disorder, including her compulsive need for love and affection that drove her behaviour with the student. There is good evidence in controlled studies of treatment of borderline personality disorder, including a large trial we completed at the Centre for Psychotherapy (Walton et al, 2020), that impulsivity specifically, and borderline personality disorder generally, can be successfully reversed, and that the outcome is for a minimum of five years. It is this treatment that is most likely to protect the community from re-offence. Although there is no study (that I am aware of) on the effect of gaol on borderline personality disorder, the anecdotal evidence from my service is that gaol contributes nothing to rehabilitation from borderline personality disorder. It is my opinion that interrupting [the applicant's] psychotherapy at this stage is detrimental to her rehabilitation and would be disruptive of healthy changes underway within [the applicant] that would protect the community in the long run. It is true that [the applicant] could stop her therapy now because of gaol and resume sometime in the future, but it is most likely that successful treatment after gaol will be much harder, more prolonged, and less achievable.

Moral culpability, rehabilitation

In the sentence proceedings before her Honour there was discussion of whether the case engaged the following principles, as stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]: Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence [citations omitted]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed [citations omitted].
During the sentence hearing on 19 August 2020 counsel for the applicant expressly did not submit that there was a causative relationship between the applicant's diagnosed mental disorders, or any of them, and the offending. After the sentence hearing and before the day on which the matter was listed for sentence to be pronounced, counsel forwarded to the judge's chambers additional reports that had not been tendered on 19 August. These included the hospital discharge report of 6 March 2019 relating to the applicant's admission after her attempted suicide, the assessment of Ms Koorey of 29 April 2019 and Dr Bendit's second report dated 19 August 2020.
That material was received as an exhibit on 4 September 2020 very shortly before her Honour delivered her Remarks on Sentence and pronounced the orders. On the basis of the additional reports counsel for the applicant changed his position and sought to invoke the principles quoted above from Director of Public Prosecutions (Cth) v De La Rosa. The following exchange occurred: HER HONOUR: There is no express opinion in Dr Bendit's recent report, as I read it, that there is a causal connection between the borderline personality disorder with which your client has been diagnosed and her offending behaviour. If I'm wrong about that, can you take me to the expression? COUNSEL: Your Honour is not wrong about that. There is nothing in that report that expresses a direct causal connection.
With due respect to her Honour and to counsel, the passages from Dr Bendit's report that are quoted at [36] above convey a direct and explicit expression of opinion, from the applicant's treating psychiatrist, that there was a causal relationship. Every professional opinion that was before her Honour confirmed that the clinical manifestations of the applicant's Borderline Personality Disorder included extremely negative self-image, obsessive and compulsive seeking of validation and affection from others and impulsivity. Dr Bendit characterised the offending precisely in terms of those clinical features.
In her Remarks on Sentence, having noted the concession by counsel, which in my view was not justified, her Honour held as follows: [218] […] I am not satisfied that the offender's mental condition was of such a magnitude that her moral culpability for the offending is reduced. While I have determined that this factor has no bearing upon the objective gravity of the offences, I nonetheless am satisfied that it does provide some explanation for her motivation and I do take it into account when sentencing the offender overall. [219] I accept that the offender is a person who has had a troubled upbringing and who has difficulties as a result of her Borderline Personality Disorder. Accordingly, I find that there is a strong need for the offender's rehabilitation in the circumstances.
Her Honour's rejection of a causal link between the applicant's disorder and the offending is, with respect, inconsistent with the following finding, which her Honour adopted as one of three reasons for taking a guarded view of the applicant's prospects of rehabilitation: [205] […] Third, her rehabilitation is premised on her participation in further treatment for her Borderline Personality Disorder. As the reports before me make clear, treatment is complex for the offender and her recovery is by no means certain. Nevertheless I am satisfied that the offender's expressions of willingness to undertake treatment are genuine and that the offender accordingly has reasonable prospects of rehabilitation.
The applicant has no prior criminal record. In that context, the question of rehabilitation is concerned with her being restored to good conduct without repetition of offending such as that which was before the learned judge. Her Honour's finding that the applicant's rehabilitation is dependent upon continued treatment for the Borderline Personality Disorder inherently involved acceptance that the disorder was at least a contributing cause of the offending. I am unable to reconcile the conclusion at [205] of the Remarks with the rejection of a causal connection at [218].
The implicit acceptance of a causal relationship at [205] is strongly supported by the evidence on sentence. Her Honour accepted the diagnosis of Borderline Personality Disorder and its attributes as explained in the medical and psychological reports. Having regard to the good character of the applicant in all other respects and the absence of any evidence or finding of personal sexual gratification or deviance, the inference was inescapable that the applicant's diagnosed disorder had been a significant cause of her extraordinary conduct towards the 14-15-year-old victim. The applicant was entitled to the benefit of this inference if it was supported on the balance of probabilities, as in my view it clearly was.
There is no ground of appeal that challenges, specifically, her Honour's rejection of a causal link between the disorder and the misconduct charged. However, when determining whether the sentence is manifestly excessive under appeal ground 3 it is open to this Court to take into account that the sentence imposed must have been significantly informed by her Honour's conclusion at [218], which I have found to be inconsistent with the earlier finding at [205] and contrary to the medical evidence that was all one way. Having concluded on ground 3 that the sentence was manifestly excessive, it became necessary to consider what would be an appropriate penalty to which this Court should resentence the applicant. I have approached that question on the basis that I am satisfied that the applicant's diagnosed mental condition was the substantial cause of her offending, that her moral culpability is significantly reduced for that reason and that it is not appropriate to impose upon her, for the purpose of general deterrence, a sentence of the length that might otherwise be appropriate to serve that end.

Low risk of re-offending, remorse

Her Honour accepted that the applicant was at a low risk of reoffending. That view was supported by a favourable Sentence Assessment Report prepared by a Community Corrections Officer. The Report proposed that if the applicant were to be dealt with by way of a Community Corrections Order, supervision would include monitoring the applicant's continued engagement with the psychotherapy treatment that she was receiving from Dr Bendit in the public health system and from Dr Cantali in private practice. They both confirmed the applicant's cooperation and genuineness in accepting the treatment.
Her Honour concluded that the applicant had "demonstrated some insight into her offending" and "some remorse" but expressed the following reservations: [208] […] However, she continues to minimise her behaviour and to deflect blame on to the victim. She is erratic in her acceptance of full responsibility, initially accepting that she kissed the victim when she was assessed by Ms Lattas [on 15 April 2019] yet denying that same conduct when she participated in the assessment for the Sentencing Assessment Report [in May 2020]. The latter denial is a strong indication that [the applicant] is grappling with an acceptance of full responsibility. […] [Her] continued minimisation and deflection of blame onto her child victim illustrate that her remorse is broad and limited and lacks full acceptance of both criminal responsibility, and harm to the victim.
When considering resentence I have taken into account that, although the Sentencing Assessment Report recorded that the applicant "minimised the physical elements of the offence and denied ever kissing the victim", when the applicant came before her Honour on 19 August 2020 she agreed the statement of facts which set out the two instances of kissing and she acknowledged her guilt of the Form 1 offences, Sequences 6 and 11, which were based upon the kissing.
Further, the Sentencing Assessment Report contained the following record of attitudes expressed by the applicant in May 2020, which appear much more significant to genuine remorse than the applicant's inconsistency regarding "the physical elements": She disclosed that she knew what she was doing was wrong and indicated that she did shut down contact with the victim, however reopened lines of communication when she was feeling down. [The applicant] has expressed sound insight into the impact of her offending behaviour on the victim, stating she takes full responsibility for her actions and is disgusted with herself. She expressed empathy towards the victim, outlining how the choices she made may have impacted the victim both now and into the future.
For the purposes of resentencing, I would not act upon her Honour's conclusion that the applicant's attitude "lacks full acceptance of both criminal responsibility, and harm to the victim". I do not regard that adverse conclusion as supportable on the evidence referred to above.

Early pleas of guilty

Her Honour allowed a discount of 25% in recognition of the utilitarian value of the applicant's early pleas of guilty. The discount would of course have been applied to the indicative sentences. The implied starting points of the indicative sentences were therefore as follows: Sequence 1: 2 years and 8 months, non-parole period 1 year and 7 months. Sequence 8: 4 years and 5 months, non-parole period 2 years and 7months. Sequence 10: 4 years and 7 months, non-parole period 2 years and 8months.
The appeal against sentence is directed to the aggregate but the Court may be aided in forming a conclusion as to whether the aggregate is plainly unjust and manifestly excessive by consideration of the indicative sentences that have been nominated. A strong indication that the aggregate sentence imposed in this case was manifestly excessive is that the starting point indicative penalties for Sequences 8 and 10 were, in each case, nearly half the maximum. When one considers the wide range of objective gravity of offending that is comprehended by ss 61M(2) and 66DB, the location on that scale of the physical conduct in this case and the significant reduction in moral culpability on account of the respondent's mental condition, the starting point indicative sentences for these offences are seen to be clearly disproportionate.

Harm to the victim

Some measure of harm is presumed in the structure of provisions such as ss 61M(2) and 66DB, where non-consent is not an element of the offence: Clarkson v The Queen; EJA v The Queen (2011) 32 VR 361; [2011] VSCA 157 at [33]. The degree of harm suffered by the victim is commonly an important integer in assessing the objective gravity of an offence against s 61M(2) of the Crimes Act or its successor, s 66DB. Given the limited physical element of offences against those sections, where harm is occasioned it will usually be of a psychological nature. It can reasonably be inferred that sexual interaction with a teacher 11-12 years older would likely cause a degree of emotional confusion in a high school student 14-15 years of age and would disrupt his emotional and personal development.

General and specific deterrence

It is clear from the Remarks that general deterrence was a significant consideration for her Honour. In forming a view about resentence I have had regard to the need for general deterrence, moderated by allowance for the applicant's reduced culpability by reason of her Borderline Personality Disorder. Like every aspect of sentencing, the weight to be given to general deterrence has to be individualised to the instant case, taking account of the circumstances of commission of the offence and factors specific to the individual offender that bear upon whether he or she is a suitable vehicle for conveying deterrence.
With respect to specific deterrence, contrary to her Honour's view, I do not consider that this has any part to play in sentencing the applicant. She has not only lost her immediate employment but in all probability she will not be able to re-engage in her profession or in any allied field, for example sports coaching. The applicant is unlikely to have the opportunity to reoffend in a similar manner. Further, the strong evidence before the sentencing judge regarding the applicant's sense of shame and her conscientious pursuit of psychotherapeutic help indicate that she needs no further personal deterrence beyond what she would feel from her public and professional humiliation and from a sentence measured upon other considerations.

Ground 3 - manifestly excessive sentence

The principles upon which the Court determines a ground of appeal that a sentence is manifestly excessive were restated by RA Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. The principles include, most pertinently for the present case, the following: Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
In all of the circumstances of this case, concerning the objective gravity of the offending acts, qualifications to the applicant's moral culpability and a subjective case that the Crown acknowledged at first instance was "very persuasive", I am satisfied that the head sentence of 3 years and 10 months with a non-parole period of 2 years and 3 months is plainly unjust. There must have been some misapplication of principle even without identifying where and how. As was said in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: [By] its very nature, that is a conclusion that does not admit of lengthy exposition.
The Court is, however, required to give reasons in resentencing the applicant. My reasons for having joined in the orders for the substituted sentence in this case are, in large part, the reasons I have given above for differing from her Honour concerning the applicant's remorse, acceptance of responsibility in recognition of harm, the causative effect of her Borderline Personality Disorder and the diminished importance of both general and specific deterrence in this instance.
In addition, the evidence before her Honour showed that the only recognised treatment for Borderline Personality Disorder is psychotherapy, which would not be available in prison. I have quoted the opinions of the applicant's two treating professionals to the effect that interruption of the treatment she had been receiving up to the date of sentence would disrupt "healthy changes underway" and impair the efficacy of resumed treatment after her release. Taking into account all other sentencing considerations, there was much force in the submission made to her Honour that the community's interest would best be served by giving significant weight to the fourth of the purposes of sentencing prescribed by Parliament in s 3A of the Crimes (Sentencing Procedure) Act, namely: (d) to promote the rehabilitation of the offender.
In circumstances where this Court found it necessary to resentence after the applicant had served 17 months full-time imprisonment, the best that could be done to promote rehabilitation was to fix a term under which she may be released to parole forthwith and thereafter be subject to the supervision of Community Corrections over the next 11 months.

Ground 1 - non-parole period for Sequence 8

Section 61M(2) of the Crimes Act under which Sequence 8 was charged was in force up to 30 November 2018 in the following terms: 61M Aggravated indecent assault (2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years.
On and from 1 December 2018 s 66DB of the Crimes Act came into force and replaced s 61M(2). The relevant part of s 66DB is as follows: 66DB Sexual touching - child between 10 and 16 Any person who intentionally: (a) sexually touches a child who is of or above the age of 10 years and under the age of 16 years […] is guilty of an offence. Maximum penalty: Imprisonment for 10 years.
Also on 1 December 2018 the following section was inserted in the Crimes Act: 80AF Uncertainty about time when sexual offence against child occurred (1) This section applies if: (a) it is uncertain as to when during a period conduct is alleged to have occurred, and (b) the victim of the alleged conduct was for the whole of that period a child, and (c) there was no time during that period that the alleged conduct, if proven, would not have constituted a sexual offence, and (d) because of a change in the law or a change in the age of the child during that period, the alleged conduct, if proven, would have constituted more than one sexual offence during that period. (2) In such a case, a person may be prosecuted in respect of the conduct under whichever of those sexual offences has the lesser maximum penalty regardless of when during that period the conduct actually occurred, and in prosecuting that offence: (a) any requirement to establish that the offence charged was in force is satisfied if the prosecution can establish that the offence was in force at some time during that period, and (b) any requirement to establish that the victim was of a particular age is satisfied if the prosecution can establish that the victim was of that age at some time during that period.
Subsection (3) of s 80AF, which it is not necessary to set out in full, provided that a "child" for the purposes of the section is a person who is under the age of 16 years and "sexual offence" includes an offence against, inter alia, any provision of Pt 3 Div 10 of the Crimes Act, which includes sections in the range 61A to 80AG.
Sequence 8 was charged as having been committed between 15 October 2018 and 19 December 2018. Those were the commencement and end dates of Term 4 of the school year. The facts summarised at [11]-[15] above show that the offence must have been committed in late November or within the first three weeks of December 2018.The four conditions (a)-(d) in s 80AF(1) are met. For the purposes of condition (d), the repeal of s 61M(2) and the insertion of s 66DB had the effect that the conduct of the applicant would have constituted more than one offence during the charge period, namely an offence against either section, depending upon exactly when it took place.
By force of s 80AF(2) it was therefore open to the Crown to prosecute the applicant's conduct charged in Sequence 8 under either s 61M(2) or s 66DB. The two provisions prescribe the same maximum penalty. In s 80AF(2) I interpret the words "whichever of those sexual offences has the lesser maximum penalty" as referring equally to both offences where the maximum penalties are the same. The alternative would be to interpret sub-s (2) as inoperative in a case of equal maxima, which would frustrate the evident object of the section and lead to an inability to prosecute at all. Although it requires some straining of the statutory language, the interpretation that I have adopted is necessary to avoid reading the section in a manner that, in my view, could not have been intended by Parliament.
Up to and including 30 November 2018, the table to Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act specified a standard non-parole period of 8 years for an offence against s 61M(2) of the Crimes Act. Standard non-parole periods are specified for contraventions "in the middle of the range of seriousness" on objective factors: s 54A(2) of the Crimes (Sentencing Procedure) Act. This Court has on a number of occasions commented upon the apparent incoherence of a standard non-parole period fixed at a very high proportion of the maximum penalty: see for example MH v R [2011] NSWCCA 230 at [52].
With effect from 1 December 2018, when s 66DB was enacted in place of s 61M(2), no standard non-parole period was specified in the table to Div 1A of Pt 4 for the new offence and the standard non-parole period for s 61M(2) was removed. At the same time the following clause was inserted in the savings, transitional and other provisions of Sch 2 of the Crimes (Sentencing Procedure) Act: 91 Standard non-parole periods The Table to Division 1A of Part 4 of this Act, as in force immediately before its amendment by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, continues to apply in respect of an offence against section 61M (1) or (2) of the Crimes Act 1900 committed before that amendment.
Section 25AA(2) of the Crimes (Sentencing Procedure) Act is relevant in this context. It provides as follows: 25AA(2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.
The difficulty with applying cl 91 of Sch 2 is that the prosecution was unable to say and did not prove that the offence in Sequence 8 was "committed before that amendment", that is, before 1 December 2018. The difficulty with applying s 25AA(2) is that the prosecution was unable to say and did not prove whether "the time of the offence" was prior to the amendment of the Table, when a standard non-parole period was specified for an offence against s 61M(2), or after the amendment, when there was no longer any such standard non-parole period prescribed. The result is that, where Sequence 8 has been charged under s 61M(2) in reliance upon s 80AF and, on the agreed facts, that offence may have been committed on either side of the date from which the standard non-parole period was removed from the Table, it is not possible to say that the standard non-parole period applied. Neither cl 91 of Sch 2 nor s 25AA(2) of the Crimes (Sentencing Procedure) Act is engaged in a way that would make that standard non-parole period applicable.
It follows that ground 1 should be upheld. Her Honour expressly proceeded on the basis that a standard non-parole period applied. Having regard to all other objective and subjective factors that bear upon an appropriate sentence in this particular case, in the exercise of my own sentencing judgment I would not consider that the appropriate penalty is to any appreciable extent affected by whether or not the Court should have regard to the statutory guidance of a standard non-parole period. Nevertheless, by taking it into account her Honour had regard to an irrelevant consideration and the exercise of her sentencing discretion was thereby affected by error. As I am of the view that a lesser sentence is warranted, the upholding of this ground, alone, would lead to resentencing.

Ground 2 - misapprehension of facts in Sequence 8

Pursuant to ground 2 it was argued that the learned judge erroneously took the facts of Sequence 8 to involve direct touching by the applicant of the victim's genitals, whereas it was agreed that this touching took place only on the outside of the victim's clothing. Having reviewed closely her Honour's Remarks on Sentence I am satisfied that they do not disclose any such misapprehension. I would reject ground 2.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2022

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (19)

Cited By (1)