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Decision Under Appeal: Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Campbell Date of Decision: 26 April 2024 Case Title: McFarlane v Van Eyle Court File Number: CAN 2500/2019 MOSSOP J: Introduction

1. This is an appeal against a sentence imposed by the Magistrates Court. On 26 April 2024, a magistrate convicted the appellant, Timothy Van Eyle, and sentenced him to 10 months’ imprisonment for the offence of committing an act of indecency without consent on 21 January 2019. The sentence was to be suspended after the offender served two months from the date of the sentence subject to a good behaviour order for a period of one year with conditions which included a probation condition.

2. The appellant has appealed from this decision.

3. The grounds of the appeal are: (a) Her Honour treated as an aggravating factor an inherent characteristic of the offence, namely that the appellant’s motivation for the offence was sexual gratification. (b) Her Honour failed to have regard to a relevant consideration, namely the five-year delay between the offence and sentencing. (c) In the alternative, if her Honour did have regard to delay, she failed to give adequate reasons, by not explaining how she took it into account.

4. The appeal is pursuant to Pt 3.10.2 of the Magistrates Court Act 1930 (ACT). Given the discretionary nature of the magistrate’s sentencing decision, the appellant is required to establish a House v The King error: see House v The King (1936) 55 CLR 499 at 504-505.

The sentence imposed by the magistrate

5. The sentence imposed by the magistrate was to a term of imprisonment of 10 months commencing on 26 April 2024 and ending on 25 February 2025. The sentence was to be suspended after the offender had served two months’ imprisonment, subject to entry into a good behaviour order of 12 months. The conditions and requirements of the good behaviour order were as follows: After 2 months you are to be released upon signing an undertaking to comply with the following conditions: 1. To comply with the core conditions of an offender’s good behaviour order under section 86 of the Crimes (Sentence Administration) Act 2005 ... 2. To be of good behaviour for a period of 12 months. 3. To be subject to probation to be supervised by the director-general and to obey all reasonable directions of the director-general for a period of 12 months or such lesser period as deemed appropriate. 4. To attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed.

6. The offender served 14 days in custody from 26 April 2024 until 9 May 2024 prior to being released upon bail pending the determination of this appeal.

Procedural history

7. These proceedings have a substantial procedural history. The appellant was first before the Magistrates Court on 4 July 2019. The offence was found proved on 8 April 2021. An appeal to the Supreme Court was successful: Van Eyle v McFarlane [2022] ACTSC 1. That decision was overturned by the Court of Appeal: McFarlane v Van Eyle [2022] ACTCA 68. Following the Court of Appeal’s decision, the matter was remitted to the Supreme Court, which then dismissed the appellant’s appeal: Van Eyle v McFarlane [2024] ACTSC 50. The magistrate then proceeded to sentence, and on 26 April 2024, imposed the sentence from which the appeal is brought.

The magistrate’s decision

8. The magistrate had before her a transcript of her reasons for decision, a pre-sentence report dated 18 April 2024, a character reference from the offender’s mother and a character reference from a female client of the appellant.

9. The magistrate summarised the facts as follows: On 21 January 2019, the victim, [OI], attended Spa Mint in Canberra City to have a full body massage and facial. The defendant was the massage therapist who conducted the massage. The defendant had been massaging around the victim’s neck and collarbone and upper chest area. There was a dispute at the hearing as to what the defendant said to the victim. The victim stated he said, “Do you want me to do the rest of your chest?” Whereas the defendant gave evidence that he said, “Do you want me to massage your whole chest?”. The victim was unsure what that entailed but said yes. I made findings that the defendant then moved the sheet down, uncovering the victim’s breasts, and he then proceeded to touch her breasts. This touching was deliberate and not just in passing in massaging other areas of the body. He touched her nipples and areolae with his hands and fondled her breasts in a sexual manner. The defendant also pulled the sheet down to her hips as he was removing his hands from her breasts to her hip area. He touched her breasts in this manner for approximately five minutes. The defendant left the victim’s breasts exposed for the remainder of the massage, approximately a further five to 10 minutes. The defendant admitted at the hearing that touching the nipples and areolae would be considered sexual. Having accepted that this action occurred, I was satisfied that the defendant knew, or at least was reckless, that the complainant had not consented to the type of touching he had engaged in.

10. The magistrate then referred to the aggravation as a result of the fact that the victim had placed her trust in the defendant and was in a vulnerable position, having removed all her clothes except her underpants as well as wearing an eye mask. She said that a person in such a vulnerable position relies upon their belief that the masseur will act in a professional manner. That is important to a massage setting, where relaxation of a client is usually one of its main objectives. She referred to the absence of a victim impact statement, but took into account the victim’s evidence at the hearing as to the impact of the appellant’s actions on her, and then went on to describe the evidence of the victim’s upset following the incident.

11. So far as sexual gratification was concerned, she said the following: I did not have to make any findings at the hearing as to whether the conduct was done for sexual gratification, as the breasts are an inherently sexual part of the body. In sentencing the defendant, I have found beyond a reasonable doubt that the act was done for sexual gratification. I have relied on the fact that the touching was for an extended period, that was not just momentarily or whilst massaging nearby areas of the body. It included the nipples and areolae. The defendant moved the sheet down to the victim’s hip, leaving her entire top half of her body exposed and did not replace the sheet when he moved to massaging other areas, leaving her breasts exposed for a considerable time. Although there were no sexual references or comments made by the defendant, the only inference is that his conduct was motivated by sexual desire and done for his own sexual gratification.

12. The magistrate then identified that, in the range of acts covered by an act of indecency, this was a serious example involving skin to skin contact having regard to the circumstances in which it was done.

13. She then turned to the personal circumstances of the appellant. The appellant was then 31 years old but was 26 years old at the date of the offence. He had only been working in the massage clinic for two to three weeks, having just completed his training at CIT. He had no criminal history and no further allegations against him notwithstanding considerable publicity having been given to his case.

14. The offending occurred on 21 January 2019, which was “now five years ago”. There have been no other charges, and he has continued to be employed in the same clinic.

15. She referred to the revised client consultation form of his employer’s massage clinic, which makes it clear that there will be no treatment of breasts, nipples or groin. She referred to the pre-sentence report, which makes it clear that the offender had learned not to use ambiguous language when speaking to clients.

16. The magistrate referred to the high regard in which she inferred his employer held him, as well as a reference from a client indicating he was a well-regarded massage therapist.

17. Her Honour referred to his educational qualifications and the fact that he had been in receipt of a disability support pension since he was 15 as a result of glaucoma and macular degeneration, which meant he has no sight in one eye and is legally blind. She identified that it had not been submitted that his poor eyesight had any role to play in his offending or that imprisonment would be more burdensome as a result of his disability.

18. The magistrate referred to the statement in the pre-sentence report that he is on the autism spectrum, but identified that she had no further information about whether he has a diagnosis or the extent to which this condition affects him.

19. Her Honour referred to the absence of any difficulty with alcohol or drugs, his living arrangements and the support that he receives from his mother and a long-term partner.

20. He was assessed by the author of the pre-sentence report as having a low risk of reoffending. The magistrate found that, apart from this offending, the appellant was a person of good character and had excellent prospects of rehabilitation. As he continued to deny the offending, she assessed him as having no remorse.

21. The magistrate then said that general deterrence must play a dominant role in the sentence. She noted that a conviction will have an impact on the defendant in that he will be subject to a restricted Working with Vulnerable People card, subject to the possibility of establishing exceptional circumstances under s 42C of the Working with Vulnerable People (Background Checking) Act 2011 (ACT). She referred to the impact that such a restricted registration may have on his capacity to service NDIS clients.

22. The magistrate made reference to the need to recognise the harm done to the victim and denounce the conduct. She said that rehabilitation plays a lesser role in this matter, no doubt because of her earlier finding that his prospects were excellent. She then referred to and described seven comparable cases to which she had been referred.

23. Finally, she noted that the appellant was not entitled to the leniency that could have been extended to him had he pleaded guilty to the charge.

24. She said that there was no penalty other than a term of imprisonment that could be imposed. She summarised the submissions of the parties as to whether or not a period of full-time detention was required. She said: I consider the seriousness of the offending, particularly the extended period of touching and the abuse of trust, calls for a period of full-time detention. I have decided that I will impose a partially suspended sentence.

25. The sentence was then announced. Ground (a)

Submissions

26. This ground of appeal asserts that the magistrate erred because she treated an inherent characteristic of the offence as an aggravating factor. In support of this proposition, the appellant places reliance upon New South Wales authorities which relate to the need to identify the aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which is a generally applicable statutory provision identifying aggravating and mitigating factors that must be taken into account in sentencing in New South Wales.

27. The appellant relied upon the reasoning in Elyard v R [2006] NSWCCA 43 at [38]-[44] and the apparent approval of that approach in the Territory by McWilliam AsJ in Mammoliti v Callaghan [2022] ACTSC 259 at [22]. He submitted that the reasoning of Adams J in AB v R [2013] NSWCCA 160; 233 A Crim R 205 as to the application of the reasons in Elyard should be adopted.

28. He submitted that, to the extent to which DPP v Liu [2024] ACTCA 23 may have been based upon an assumption that a sexual motivation for an act of indecency could be an aggravating circumstance, the point was not argued in that case and, hence, it does not bind the court to hold that it was. If necessary, the appellant submitted that the case was wrongly decided. Adopting the approach in Elyard, counsel submitted that a two-step process should be adopted: first, determining what was required to establish that a particular matter was an inherent characteristic of an offence, and second, determining whether or not sexual gratification was an inherent characteristic of the offence of committing an act of indecency.

29. The submission was that New South Wales authorities, which treated an inherent characteristic as being something which was usually present, should be preferred to those which required the matter to be something that was universally present in that offence.

30. Based upon that interpretation of what was required to be an inherent characteristic, the appellant then submitted that sexual gratification was an inherent characteristic of the offence of an act of indecency. This aspect of the argument was put on the basis that a motivation other than sexual gratification may result in there being no offence committed (for example, if the act is for a proper medical purpose) or, if some other motivation was put forward, then that motivation was often properly characterised as being, at least in part, a motivation that involved sexual gratification.

31. The submissions of the respondent pointed to the decision in DPP v Liu as being consistent with the proposition that an offender’s motivation to pursue their own sexual gratification increased the seriousness of an act of indecency offence.

32. So far as New South Wales authorities were concerned, the respondent relied upon the description in Couloumbis v R [2012] NSWCCA 264 (followed in Lee v R [2019] NSWCCA 15) that an inherent characteristic is something that is always present as a permanent and essential attribute of a thing under consideration. Therefore, the potential to identify circumstances in which the offence may be committed where a particular feature was not present indicates that the feature is not an inherent feature of the offence. The respondent then pointed to a wide variety of circumstances in which an act of indecency may have, or has, been found to occur in which a sexual motivation would not be, or was not, present.

Consideration and decision

33. This aspect of sentencing is one in relation to which the Territory legislature has not interfered. As a result, sentencing decisions in the Territory are not plagued by the complications which exist in New South Wales. The statutory provisions in New South Wales were described by Howie J in Elyard at [39] as “a needless attempt to define relevant factors into categories of aggravation or mitigation” and his Honour bemoaned the burden placed upon the Court of Criminal Appeal as a result of those generally applicable provisions.

34. Given the absence of statutory interference, it is possible to address the matter by reference to general principle before then turning to address the particular arguments based upon New South Wales authorities.

35. Sexual gratification is not an element of the offence created by s 60 of the Crimes Act 1900 (ACT). For the purposes of establishing indecency, it is necessary to establish either that what was involved was an inherently sexual part of the body (genitals, or anus, or female breasts) or alternatively that the act was done for the purposes of sexual gratification: R v Harkin (1989) 38 A Crim R 296. Thus, where the act involved a sexual part of the body, an intention to obtain sexual gratification is not an element of the offence. In the present case, the touching was of the breasts of a female and, as a consequence, did not require the establishment of an intention to obtain sexual gratification.

36. Once the factual circumstances that establish the elements of the offence are identified, it was then necessary for the sentencing magistrate to consider any aggravating or mitigating factors. Aggravating factors are factors which make the offending more serious. The facts related to a circumstance of aggravation must be established beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270. The existence of an aggravating factor may be significant for the purposes of assessing the offender’s moral culpability, the offender’s prospects of rehabilitation, or for other sentencing purposes.

37. It would be wrong to treat as an aggravating factor something which is inherent in the offence. That is because, if that factor must necessarily be present in order for the offence to have been established, then to treat the offence as more serious and warranting a greater punishment by reason of the existence of that factor would involve double counting. For example, if an act of indecency involved a part of the body that was not inherently sexual, then it will be necessary to establish that the act was done for the purposes of sexual gratification. Having regard to the fact that in those circumstances, an intention to gain sexual gratification was inherent in the establishment of the offence, it would then be wrong to treat as an aggravating factor upon sentence the fact that sexual gratification was involved.

38. It may be accepted that, in a majority of offences involving the commission of an act of indecency, there will be a sexual motivation for the conduct. However, where indecency is established as a result of the involvement of an inherently sexual part of the body, a motivation to achieve sexual gratification is not an element of the offence and is not otherwise an inherent requirement of the offence.

39. The existence of a sexual motivation is an aggravating feature, adverse to the interests of the offender, because it indicates that the offender has violated another person’s sexual boundaries in pursuit of their own sexual gratification. The existence of that motivation makes the offender more culpable than a circumstance in which the motivation was not established.

40. As the decision of the Court of Appeal in Liu makes clear, a sexual motivation may be established beyond reasonable doubt by an inference from the objectively determined circumstances. Similarly, there will be circumstances in which a motivation not involving sexual gratification may be present from the objectively apparent circumstances. It may be that a motivation that does not involve sexual gratification renders the offending more objectively serious or engages sentencing considerations in a manner even less favourable to the offender than a motivation of sexual gratification. However, that does not mean that a motivation of sexual gratification is not an aggravating factor. Bearing in mind the burden upon the prosecution to prove any circumstances of aggravation beyond reasonable doubt, whether or not something is a circumstance of aggravation is established by determining whether it is adverse to the interests of the offender if it is proved, and not by comparing it with other possible aggravating circumstances that might have existed. Thus, the relevant comparison is between a case in which the fact is proved and one in which it is not proved, rather than between one aggravating factor and another.

41. I do not accept the submission made on behalf of the appellant that the existence of a motivation of sexual gratification is inherent in the commission of the offence. As I have indicated, most such cases will involve a sexual motivation. However, amongst other potential motivations are: (a) humiliation of the victim (for example, where sexual touching occurs in the presence of others); (b) demonstration of power or control over the victim (such as may occur in the context of family violence offending); and (c) performing a “prank” so as to gain status with persons other than the victim of the offending (such as placing the male genitals on or near the face of an unconscious victim).

42. Given that, in the circumstances of the present case, an intention to achieve sexual gratification was not an element of the offence, there was no double counting of that as a factor when the magistrate identified an intention to achieve sexual gratification as a motivating factor in the offending. Her Honour did not err as alleged in ground (a).

43. That conclusion is not inconsistent with the authorities in New South Wales. The New South Wales authorities must be understood as arising from the “needless attempt to define relevant factors into categories of aggravation or mitigation” referred to by Howie J. The difficulty that a provision such as s 21A(2) creates is that it is necessarily drafted in general terms and this makes it difficult to apply across the full range of offences to which it must be applied. It becomes a ready source of error where a generally applicable “aggravating factor” such as “the offence was committed without regard for public safety” is to be applied to certain driving offences where, in order to avoid double counting upon sentencing, it is necessary to work out whether failing to have regard to public safety is inherent in the offence provision itself.

44. The foundational New South Wales case of Elyard addressed this issue. It is from that case (and in particular what was said by Basten JA at [7] and Howie J at [43]) that the appellant argued it is sufficient in order to establish that an aggravating factor is an inherent requirement that it be usual or common, and that it will only be an aggravating factor where present to an exceptional degree. However, the reasons in that case were addressing the particular statutory problem that arose from the legislature’s unnecessary intervention. Specifically, the issue was whether acting “without regard to public safety”, one of the aggravating factors specified in s 21A(2) of the Crimes (Sentencing Procedure) Act, was an inherent characteristic of aggravated dangerous driving occasioning grievous bodily harm. The case does not establish any general principle that there will be double counting for the purposes of sentencing if a factor, which is commonly but not universally present, is taken into account as an aggravating factor.

45. The decision of McWilliam AsJ in Mammolitti did not endorse the application of Elyard in the manner contended for by the appellant. Rather, her Honour accepted an agreement of the parties that appeared to reflect only the most general of principles consistent with the approach that I have outlined earlier. The manner in which her Honour found error in that case — using the existence of an element of the offence to characterise the offence as being a mid-range offence — was consistent with what I have said earlier in these reasons.

46. That Elyard did not establish a general principle of the nature contended for by the appellant is made clear by the decision in Couloumbis. The question in that case was whether the sentencing judge erred by treating a motivation of financial gain as being a circumstance of aggravation for an attempted aggravated armed robbery. Elyard was relied upon. Harrison J (with whom the other judges agreed) said: 31. An inherent characteristic suggests something that is always present as a permanent and essential attribute of the thing under consideration. As counsel for the applicant quite properly conceded in this Court, examples of the subject offence in which financial gain was wholly absent could readily be identified. It follows that financial gain is no more an inherent characteristic of the offence than it is an element of the offence.

47. That articulation is consistent with the explanation that I have given earlier in these reasons. The approach in Couloumbis was followed in Lee at [56]-[57].

48. So far as AB is concerned, the reasons of Adams J were not, in this respect, joined by the other judges of the Court. The passage of the decision of Basten JA in Elyard relied upon by Adams J in AB appears to be an explanation of the operation of the specific statutory provisions that exist in New South Wales. It is not possible to read the decision of Adams J as articulating a general principle applicable where there has been no equivalent statutory intervention.

49. Two other cases were referred to by the parties: Ingham v R [2011] NSWCCA 88 and Jolly v R [2013] NSWCCA 76; 229 A Crim R 198. Both were cases in which a sentencing error was established by reason of the taking into account of a motivation to obtain sexual gratification. However, in each of these cases, there were both offences of sexual intercourse without consent as well as aggravated indecent assaults. A conclusion that sexual gratification was an inherent aspect of the sexual intercourse offences in those cases is understandable. In each case, the inherent characteristic argument was addressed very briefly in a rolled-up fashion and did not separately address the circumstances of the aggravated indecent assaults. It is not possible to give either authority any weight on the current issue.

Ground (b) and (c)

Submissions

50. Grounds (b) and (c) assert errors in the manner in which the magistrate addressed the issue of delay. On these grounds, both parties were content to rely upon their written submissions.

51. The appellant submitted that the delay between the offence on 1 January 2019 and sentencing on 26 April 2024 was over five years and a significant factor on sentence. The appellant placed reliance upon the decision in NC v The Queen [2017] ACTCA 31, which recognised that delay was a factor that could be taken into account pursuant to s 33(3) of the Crimes (Sentencing) Act 2005 (ACT). In that case, the court referred with approval to statements that the fact that a person was being sentenced for a “stale crime” called for “a measure of understanding and flexibility of approach”. The appellant referred to portions of the magistrate’s reasons which made reference to the lapse of time and submitted: The considerable delay in this matter and state of uncertainty in which the Appellant was placed was not brought about by his own actions, but rather normal court processes, including 2 previous appeals, and the COVID-19 pandemic. Accordingly, as in NC the learned Magistrate was obliged, either to adopt some flexibility on sentence, or to provide reasons explaining how she took such a significant delay into account. However, the Appellant respectfully submits that her Honour did neither.

52. The respondent submitted that delay of itself is not mitigatory. Whether it has an impact upon the sentence will depend upon the circumstances of each case. It may have the effect of being favourable to an offender, for example where the offender is able to demonstrate progress towards rehabilitation.

53. The submissions identify the manner in which the magistrate addressed the passage of time since the offending and since the finding that the offence had been proved. The respondent submitted that the magistrate was aware of the delay and the absence of reoffending, which was taken into account. Insofar as the appellant now raises the need for “flexibility on sentence”, or the fact that the appellant has been in a state of uncertain suspense, the respondent submitted that these were matters that were never raised with the magistrate. The respondent submitted that an appellate court should not lightly entertain arguments which revise and reformulate the case presented below: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81]. The submissions that were made before the magistrate as to the absence of further convictions or charges, a low risk of reoffending and excellent prospects of rehabilitation were all accepted by the magistrate. However, the submissions now made were not advanced.

54. So far as the adequacy of reasons was concerned, the respondent referred to the decision in Porter v The Queen [2024] ACTCA 9; 21 ACTLR 122 at [29]-[31]. The respondent submitted that the magistrate correctly identified the key point arising from delay, which was that the appellant, who had maintained his employment as a masseur, had committed no further offences during the five-year period, and that fed into the appellant’s prospects of rehabilitation and the lack of need for specific deterrence as part of the sentence.

Consideration and decision

55. The magistrate referred to the passage of time since the offending at a number of points in her reasons: (a) At the commencement of her reasons, the magistrate said: “My finding of guilt has been the subject of various appeals, hence the delay in sentence”. (b) “The offending occurred on 1 January 2019, now five years ago, and the offender has not been charged with any other offences during this time. In fact, the defendant has maintained his employment at the same massage clinic”. (c) Reference was made to a reference letter from a client, who had been receiving remedial massage from the appellant since 2019.

56. The magistrate found that, outside this offending, the appellant was a person of good character and had “excellent prospects of rehabilitation”.

57. It is clear that the magistrate took into account the passage of time since the offending and since her finding that the offence was proved. She did not fail to take that matter into account so as to err in the exercise of her discretion. The weight that she gave to that consideration was a matter for her Honour, and a disagreement with the weight given to that consideration is not a ground for interference with an exercise of her sentencing discretion. The weight that she gave to the issue was influenced by the manner in which the case was presented to her and, in particular, the submissions that were made to her. The submission now put to the court that there was a discretionary error as a result of a failure to apply “flexibility on sentence” in accordance with NC, or a failure to take into account the mental impact of the appellant being held in a state of “uncertain suspense”, have not been shown to be matters that were either subject of evidence before the magistrate or the subject of submissions before her. Further, as the Western Australian Court of Appeal said in Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 at [33]: An accused is entitled to avail himself or herself of all the rights and protection offered by the criminal law with the inevitable consequence of delay before conviction and sentence, but such delay is not mitigatory (unless it facilitates or results in other positive sentencing considerations).

58. In those circumstances, no error is demonstrated in the manner in which the magistrate addressed the issue.

59. So far as the adequacy of the reasons is concerned, in Porter, the Court of Appeal, when discussing the obligation upon a judge to give reasons, explained (at [30]-[31]) that the extent of the reasons which will be required varies according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision. The reasons given do not need to be elaborate. It is, however, necessary for the reasons to demonstrate that the judge engaged with the case presented, exposed his or her reasoning on points critical to the contest between the parties, made findings as to material questions of fact, and explained why evidence or material had been rejected. In the present case, the magistrate appears to have engaged with the case that was presented to her. As no evidence or submissions have been pointed to that were overlooked and the circumstances of the delay arose from the ordinary operation of court processes initiated by the appellant, it was not a case in which the reasons given in relation to the passage of time since the offence or the finding of guilt required reference to matters that were not the subject of evidence and went beyond the matters raised in submissions.

Conclusion

60. The appeal must be dismissed. It is, however, necessary that the sentence be varied so as to take into account the fact that the appellant served 14 days prior to being released upon bail pending appeal. That can be done by varying the sentence so that it starts on 15 January 2025 and ends on 14 November 2025. The backdating of the sentence prior to the date of these reasons gives effect to the service of time in custody pursuant to the sentence prior to release on bail. Orders

61. The orders of the Court are: (1) The appeal is dismissed. (2) The sentence imposed by the Magistrates Court on 26 April 2024 is varied so that it commences on 15 January 2025 and ends on 14 November 2025 but is otherwise confirmed.

I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: