Daniel Zampatti v The Queen
[2020] VSCA 285
•13 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0120
| DANIEL ZAMPATTI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 13 November 2020 | |
| DATE OF JUDGMENT: | 13 November 2020 | |
| MEDIUM NEUTRAL CITATION | [2020] VSCA 285 | |
| JUDGMENT APPEALED FROM: | [2020] VCC 628 (Judge Tinney) | |
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CRIMINAL LAW – Appeal – Sentence – Sentencing considerations – Manifest excess – Principle of totality – Indecent act with a 16 or 17 year old under care, supervision or authority – Principle of totality – Mitigating factors – Delay as a mitigating factor – Whether total effective sentence of 27 months’ imprisonment manifestly excessive – Range of sentences reasonably open to sentencing judge – Prosecution concession that combination sentence within range – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr M FitzGerald | Doogue + George |
| For the Respondent | Mr P Bourke SC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA:
On 15 May 2020 the appellant was sentenced in the County Court for
10 counts of committing an indecent act with a 16 or 17 year old child contrary to
s 49(1) of the Crimes Act 1958.
The sentencing details are contained within the table below.
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958)5 years 3 months 1 month 2 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958)5 years 3 months 1 month 3 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958)5 years 3 months 1 month 4 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958)5 years 3 months 1 month 5 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958)5 years 3 months 1 month 6 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958)5 years 9 months 2 months 7 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958)5 years 3 months 1 month 8 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958)5 years 15
months
Base 9 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958)5 years 15
months
3 months 10 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958)5 years 3 months 1 month Total effective sentence: 2 years and 3 months’ imprisonment Non-parole period: 1 year and 2 months’ imprisonment Pre-sentence detention declared: 4 days Section 6AAA Statement: 3 years and 9 months’ imprisonment with a non-parole period of 2 years
and 3 months.
Ancillary orders: Registered as a sex offender for life;
sentenced as a serious sexual offender on charges 2–7, 9–10.
The appellant appeals that sentence. The grounds of appeal are:
Ground 1:
The individual sentences, orders for cumulation, total sentence and non-parole period are manifestly excessive.
Ground 2:
The sentence infringes the totality principle.
Ground 2 is, in reality, a particular of ground 1. We shall consider both grounds together.
On 6 October 2020, Weinberg JA heard oral argument on an application for leave to appeal and granted that leave on both grounds. His Honour delivered comprehensive reasons for that grant of leave on 8 October 2020.[1] In the interests of efficiency and expediency we will borrow heavily from those reasons.
[1]Zampatti v The Queen [2020] VSCA 264 (‘Leave Reasons’).
Circumstances of offending
The sentencing judge referred to the complainant by the pseudonym ‘Angela’, as did Weinberg JA and as shall we. In 2016 Angela was aged 17 and in Year 12 at a private school in Geelong. She had known the appellant, her music teacher and mentor, since early childhood. The appellant was then aged 35. He had been Angela’s classroom teacher in Grade 6 and Years 7, 11 and 12. He and Angela were also members of a community concert band. As to the actual circumstances of the offending, it is convenient to reproduce the comprehensive summary to be found in the Leave Reasons:
In July 2016, the school’s Senior Music Ensemble travelled to Sydney for a performance tour. Initially, Angela could not afford to go on the trip. The applicant, however, arranged for the school to provide a subsidy, enabling her to join her fellow students. She was one of about 70 students on the trip, along with some nine staff members, including the applicant.
During the course of the trip, the applicant and Angela found themselves alone on a number of occasions. They frequently exchanged messages by way of SMS and social media.
On the last evening of the tour, Angela met the applicant in the hotel foyer. She believed that the purpose of the meeting was to discuss her rehearsal schedule in the lead up to exams. At the end of their discussion, the applicant knelt down in front of her, and kissed her on the lips. It was a long kiss, after which the applicant said words to the effect of ‘at last’, before hugging her (an uncharged act because it occurred in Sydney). He then said ‘goodbye’ and went to his room. Later that night, the applicant and Angela exchanged messages regarding their feelings for each other.
Following the trip to Sydney, the applicant and Angela continued to exchange messages. Some of them spoke about how what they were doing was wrong, and that it was important to keep it to themselves. Further, Angela began to send intimate photographs of herself to the applicant.
Back in Geelong, the applicant started to give Angela lifts from school to the gym at the end of the day. This occurred about once a week. When he dropped her off, he would hug her and kiss her on the lips (further uncharged acts).
The applicant and Angela would also see each other at rehearsals for the community concert band. Percussionists were seated towards the back of the concert pit. There, the applicant and Angela would discreetly hold hands, unable to be seen by the other members of the band.
On 13 August 2016, the applicant drove with his wife (who was also a member of the community concert band) and Angela to the State Band Championships in Ballarat. Angela was due to perform later that day at an examination recital, in Geelong, as part of her Year 12 course. The applicant drove her back after the band’s performance in Ballarat. The applicant’s wife did not join them on the return journey.
During the drive, the applicant and Angela held hands. They stopped at the applicant’s home on the way to school. They went inside, where they hugged and kissed (charge 1 — indecent act with a 16 or 17 year old child under care, supervision or authority). The applicant then drove Angela to school. After the recital, and the examiner had left the room, the applicant and Angela hugged. She then left the room and was collected from school by her parents.
Ten days later, on 23 August 2016, the applicant drove Angela to another music competition. In the car, they held hands, hugged, and kissed (giving rise to charge 2).
On another unspecified date in August, the applicant was performing at a venue in Geelong. Angela assisted him in setting up before the performance, and in packing up afterwards. She met him at about 1:00 pm, and remained in his company until midnight. The applicant took her to dinner. They hugged and held hands. After the performance, the applicant drove Angela home. When they arrived at her house, they hugged, and then kissed for about a minute (giving rise to charge 3).
About a month or so after this incident, the applicant performed again at the same venue. Angela assisted him with setting up, and packing up, in the same manner as previously. When the applicant dropped her home, shortly after 1:00 am, he kissed her and touched her breasts over her clothing (giving rise to charge 4).
At about this time, the applicant’s wife questioned him as to whether he was having an affair. He denied any such suggestion.
In September 2016, the applicant suggested to Angela that they spend the night together at a hotel. On the morning of 17 September 2016, he collected her and drove to Melbourne. Angela told her parents that she was staying at a friend’s house in Geelong. The applicant had told his wife that he was going on a ski trip with his brothers. Once they arrived in Melbourne, the applicant checked them into the Sheraton Hotel.
At the hotel, the applicant and Angela swam in the pool. There, they kissed and held hands (giving rise to charge 5). Afterwards, they returned to the hotel room, where they showered together. Whilst in the shower, the applicant touched her breasts (giving rise to charge 6).
The applicant and Angela then went out to dinner. When they returned, they watched TV in bed. They began hugging and kissing (giving rise to charge 7). They then undressed. The applicant touched Angela’s vagina (without penetrating her) and she touched his penis (giving rise to charges 8 and 9). They fell asleep some time later. The next morning, the applicant drove Angela back to her home in Geelong.
On 20 September 2016, the applicant, for the first time, admitted to his wife that he and Angela were having ‘an affair’. He told her, falsely, that their physical relationship had been limited to contact ‘above the waist’. Further, he said that the affair was over.
On 9 October 2016, Angela performed at a venue in Geelong. The applicant drove her home after the event. In the vehicle, they hugged and kissed (giving rise to charge 10).
On a number of occasions between the Sydney trip in July and 9 October, the applicant and Angela engaged in physical contact during school hours. This included hugging, kissing, and the applicant having touched Angela’s breasts, over her clothing. These were uncharged acts that took place in empty classrooms, and in the applicant’s office.
On 16 October 2016, the applicant took Angela to her Year 12 music exam in Melbourne. After the exam, the applicant told Angela that his wife had found out about what he had done, and that she was going to inform the school principal. He asked Angela to delete all of his messages to her from her phone.
On 20 October 2016, the school principal called a meeting between himself, the applicant, and the applicant’s wife. The applicant admitted that he was in a relationship with Angela, but claimed that it was not sexual in nature. In the days following, his employment was suspended, and subsequently terminated.
On 19 January 2017, the applicant wrote a letter to Angela’s parents. That letter spoke of how he had ‘always had her best interests at heart. [He had] a great respect for her and her decisions and [had] never pressured her into anything she [did] not want to do.’
In November 2018, almost two years later, Angela made a statement to the police regarding the applicant’s conduct towards her. On 25 March 2019, the applicant was arrested and interviewed by police. He made a ‘no comment’ interview. On 31 July 2019, the applicant was charged.[2]
[2]Leave Reasons [6]–[27].
The plea hearing
The appellant’s submissions
On the plea hearing senior counsel for the appellant submitted the following:
·The complainant was 17 years and nine months old when the offending commenced.
·The offending occurred over six weeks.
·At that time the appellant’s marriage was deteriorating. Circumstances led to he and the complainant spending a lot of time together.
·The appellant expressed remorse as soon as the relationship was discovered. Whilst the matter was reported to police, the complainant did not wish to make a statement.
·The appellant lost his job as a teacher, ceased contact with the complainant from January 2017, and separated from his wife at about that time.
·The appellant acknowledged the suffering outlined in the Victim Impact Statements and his responsibility for it. It should not, however, overwhelm the sentencing process.
·General deterrence, denunciation and just punishment all have an important place in the sentencing mix and could be expressed appropriately through the imposition of a Community Correction Order (‘CCO’). Specific deterrence and protection of the community ought fall away in light of the appellant’s excellent prospects for rehabilitation.
·The appellant pleaded guilty at the earliest stage possible and has powerfully expressed his remorse.
·The plea of guilty has a high utilitarian value when the Court’s operations are disrupted by the pandemic.
·The offending, if not the charges themselves, has been hanging over the appellant’s head for three and a half years. The complainant made a statement to police, contemporaneously with filing civil proceedings in December 2018. It was a further eight months before the appellant was charged.
·
The appellant was treated by David Sullivan, psychologist, for depression and ‘relationship problems’ with this wife on
24 August 2016. In February 2017 he was tearful and remorseful, suffering from moderate depression, and by October 2019 he was severely anxious and moderately depressed. He suffers from significant psychological dysfunction requiring comprehensive treatment.
·The increased risk of contracting COVID-19 will be a source of anxiety for the appellant if incarcerated.
·In the context of the pandemic climate, if the appellant were to be imprisoned he would be unlikely to see his mother and/or children very often, if at all.
·The appellant is aged 39, separated from his wife and has two young children. He lived in Geelong West and shares joint custody of the children. Since being deregistered as a teacher he has worked freelance in music production and staging musical events. He comes from a solid, happy family background and has three brothers and a sister. His father passed away in 2012. He graduated from Monash University in 2005 with a Bachelor of Music and a Graduate Diploma of Teaching. He then taught music at private schools in Geelong until the events the subject of the current charges.
·Reports from psychologists identified a ‘longstanding psychological immaturity’ which, it was submitted, provided a context in which a very close professional relationship was allowed by the appellant to develop.
·The first four charges involved individual kissing and hugging episodes in August 2017, three months before the complainant’s 18th birthday. The recovered SMS messages demonstrate a mutually loving and flirtatious relationship.
·Charges 5–9 occurred on the one occasion in September 2016 when the appellant and the complainant spent a night together at the Sheraton Hotel in Melbourne. Charge 10 relates to a kiss on 9 October 2016.
·When the relationship was discovered the appellant and the complainant remained on affectionate and respectful terms. In February 2017 the media published the fact of the relationship. This would appear to have deleteriously affected both parties.
·General deterrence and denunciation have already been given some effect by the appellant’s deregistration as a teacher. His marriage, relationships with his children and his reputation have all suffered. A CCO of significant duration would give appropriate effect to the residual need for general deterrence, just punishment and denunciation, while allowing for the psychological attention the appellant requires.
·The two psychological reports referred to were tendered on the plea, as were a number of character references.
The respondent’s submissions
On the plea hearing the prosecutor submitted: ‘My instructions are that a combined sentence would be appropriate because of a number of [aggravating] factors … [A]n immediate term of imprisonment with a CCO is in range’.
The aggravating factors referred to by the prosecutor were:
·the power imbalance with the resulting breach of trust;
·the age difference;
·the planning involved in the Sheraton Hotel offending, the breach of trust in respect of the complainant’s parents and of the school;
·the brazenness of the offending;
·the time period over which the offending occurred; and
·the early attempts at concealment of the full extent of the offending.
The judge’s reasons
The sentencing judge’s remarks were thoroughly summarised by Weinberg JA. We shall set out that summary.
Before setting out the background facts, the judge stated that he had contemplated making a suppression order, as might be usual in such cases, but had decided against that course. He said that one of his reasons for doing so was:
It would have the effect of leaving out of the public domain statements from this court which may actually correct some of the warped and misguided vitriol directed at your victim as though she was somehow a person at fault. She was 17 years of age and your pupil. There is one person criminally at fault here and that is you, the person committing the crimes. It is important that the court is able to send a message to other likeminded potential future offenders. General deterrence is an important factor here which just cannot be achieved without describing your crimes, your status at the time of the offending and providing details as to the ultimate sentences imposed upon you, the offender.[3]
[3]DPP v Zampatti [2020] VCC 628, [5] (‘Sentencing Reasons’) (Judge Tinney) (emphasis in original).
The judge then set out the circumstances of the offending. When he turned to the lies that the applicant has told both his wife and the school principal, he noted that they would not be taken into account as matters of aggravation.
In summarising the offending, the judge said:
You were her teacher. You had been a trusted adult for more than half her life and you totally abdicated your responsibilities by engaging in this selfish and what you knew to be forbidden conduct. The suggestion in a letter you wrote to her family that you always had her best interests at heart was pretty wide of the mark, if I may say so. I will come back to that letter when discussing the issue of remorse.
…
I will sentence in accordance with the full agreed facts noting of course as I already have that I am not dealing with you for a penetrative act. These are charges of indecent act, not sexual penetration. But they are indecent acts [with] a child under your care, supervision or authority and here, it seems to me, each of those words could have applied. She was at various times under your Care, Supervision and Authority.[4]
[4]Ibid [17], [20] (emphasis in original).
The judge then turned to Angela’s victim impact statement, and those prepared by her parents. They had each prepared lengthy statements, detailing the full extent of the impact that the applicant’s offending had had upon Angela and her family. His Honour noted their desire not to have the details of those statements included in his sentencing remarks, but spoke of them as having made clear ‘why that offence exists … This was not an affair. This was not an equal relationship.’[5] The judge acknowledged, however, that the statements were but one factor to consider in the sentencing task.
His Honour then turned to outline the competing submissions on the plea. Counsel for the applicant had submitted that a [CCO], without any term of imprisonment, would be an appropriate disposition. The prosecutor, however, called for a term of imprisonment, but acknowledged that a combination sentence would be within range.
The judge then outlined some of the matters in mitigation. They included the applicant’s early plea, his lack of any prior or subsequent convictions, his previous good character, his moderate depression, and the considerable extra curial punishment that he had suffered in having lost his career, and been widely exposed in the media for what he had done. He also dealt with the applicant’s personal circumstances, including the fact that the applicant’s wife had ended their marriage. With regard to remorse, his Honour expressed some scepticism, particularly in light of the letter sent to Angela’s parents. As to the prospect of the applicant’s reoffending, the judge accepted that this was ‘low’.[6]
The judge then turned to two psychological reports tendered on behalf of the applicant, one by Dr Matthew Barth, and the other by Mr David Sullivan. Both spoke of the applicant’s mild depression at the time of the offending, and particularly after his marriage had broken down. His Honour said that he would take these reports into account and give ‘some limited weight’[7] to Verdins[8] principle five.
The judge then dealt with submissions raised on the plea with regard to the COVID-19 pandemic. He referred, in passing, to a number of decisions by this Court,[9] and the Trial Division,[10] regarding that subject. He noted that the pandemic, and the associated lockdowns, would cause increased anxiety and stress for all prisoners, but emphasised that he did not wish to speculate as to how this would impact upon the applicant.
The judge then turned to the objective gravity of the offending. He spoke of the power imbalance that existed between the applicant and Angela, and of his having been, for many years, in a position of trust. With regard to the weekend in Melbourne, he noted that this had been planned, and said that it took the offending ‘to a whole new level’.[11] The applicant knew that his conduct was wrong, and his moral culpability was therefore high. His Honour considered that general deterrence, punishment, and denunciation were the key sentencing considerations in this case.
The judge then briefly discussed current sentencing practice for this offence by reference to statistics from the Sentencing Advisory Council, and a number of comparators that had been raised on the plea. With regard to the statistics, he observed that they were of limited utility, and silent as to a number of factors such as the details of the offending, or levels of remorse. With regard to the supposed comparators, his Honour observed that the prosecution had submitted that there was no truly comparable case.
His Honour then turned to the sentence to be imposed. He said that despite the applicant’s positive prospects of rehabilitation, and the reduced weight to be given to specific deterrence, there was ‘absolutely no doubt at all’ that a term of imprisonment was warranted.[12] He concluded that a combined sentence of a term of imprisonment and a CCO was not available in this case. He said: ‘[The applicant] would need to be in a position to commence the community corrections order within 12 months and that is simply not achievable here.’[13]
With regard to totality, the judge recognised that the most serious of the charges were those relating to the weekend in Melbourne. He indicated that, if he were free to do so, he would have preferred to impose an aggregate sentence, thereby avoiding the need to make orders as to cumulation. However, he was precluded from doing so by s 9(1A) of the Sentencing Act [1991]. He observed that s 6E of that Act rebutted the presumption of concurrency when sentencing serious offenders, but recognised that he needed to avoid imposing a crushing sentence, by paying due regard to the principle of totality.
His Honour then sentenced the applicant as indicated above.[14]
[5]Ibid [23].
[6]Ibid [54].
[7]Ibid [56].
[8]R v Verdins (2007) 16 VR 269.
[9]See generally Brown v The Queen [2020] VSCA 60; Sazimanoska v The Queen [2020] VSCA 66; Nguyen v The Queen [2020] VSCA 76; Wyka v The Queen [2020] VSCA 104.
[10]See generally Re Broes (2020) 279 A Crim R 271; Re McCann [2020] VSC 138; Re Tong [2020] VSC 141; R v Madex [2020] VSC 145; Re Nicholls (2020) 279 A Crim R 289; Re Diab [2020] VSC 196; Re Thomas [2020] VSC 206.
[11]Sentencing Reasons [70].
[12]Ibid [93].
[13]Ibid [95].
[14]Leave Reasons [28]–[40] (citations omitted).
This appeal
The appellant’s submissions
On appeal to this Court, the appellant’s submissions in relation to charges 1–5, 7 and 10 was that the individual sentences of three months on those charges, with the orders for cumulation made, were disproportionate and wholly beyond the range of reasonably available sentences for conduct that was on any view ‘towards the lower end’ of offending of this kind. Insofar as the ‘Sheraton weekend in Melbourne charges’ (charges 6, 8 and 9) were concerned, the appellant submitted that this conduct, whilst more serious, ought to be considered as part of the one continuing transaction, and the five months’ cumulation fixed was manifestly excessive. More broadly it was submitted that the sentences imposed on charge 6 (nine months) and charges 8 and 9 (15 months on each) were manifestly excessive. Counsel took us to a number of sentences imposed in what were said to be similar cases and pointed out that there was only one other instance where a sentence in the range of 15 months for non-penetrative offending had been imposed.
Counsel for the appellant in written submissions directed us to the prosecution’s concession, both on the plea and before Weinberg JA, that a composite sentence was ‘within range’. This amounted to a concession that if the Court were minded to impose a CCO together with a term of imprisonment of not more than
12 months, then such a sentence would be reasonably open to the sentencing judge.[15] The appellant contended that if an overall total effective sentence of 12 months’ imprisonment with a CCO was within range, it was difficult to understand how an overall total effective sentence of 27 months’ imprisonment could be within the same range. There is force in this argument.
[15]Sentencing Act 1991 s 44(1) (‘Sentencing Act’).
The appellant also relied on remorse, his early plea of guilty, his previous good character, his compromised mental health at the time of offending, delay, his good prospects for rehabilitation and the impact of COVID-19 on the service of a custodial sentence.
All these factors, it was submitted, demonstrated powerfully that the total effective sentence was wholly beyond the range of sentences reasonably open to his Honour.
The respondent’s submissions
The respondent contended that the offences charged existed to protect children who would ordinarily be able to engage consensually in sexual activity with an adult, from being taken advantage of as a result of a power imbalance. The breach of trust was grave in all the circumstances and his Honour was correct to characterise the offending conduct as ‘plainly serious’ with high moral culpability.[16] Further, the offending had a substantial impact on the complainant and her family.
[16]See Sentencing Reasons [4], [70].
In written submissions the respondent (not senior counsel at the leave application or before this Court) dealt with the concession made by the prosecutor on the plea that a combined sentence was ‘appropriate’ by deprecating the prosecutor’s use of that term and stating the trite proposition that ‘the decision as to penalty was [the judge’s] alone’. His Honour was ‘perfectly entitled’ to come to the conclusion that ‘only a term of imprisonment with a head sentence and non-parole period was open to him in all the circumstances’.
The respondent pointed out that the sentences imposed on each charge, even for the more serious examples of offending, were well below 50% of the maximum penalty for each offence:
Those sentences, the cumulation imposed between them, the non-parole period and the total effective sentence were open to be imposed to unequivocally denounce the conduct, to punish the applicant and to send a strong message to the community that sexual offending against children under supervision and care is not to be tolerated.
The respondent, generally, repeated these arguments in relation to ground 2 (infringement of the principle of totality).
Consideration
We have reached the conclusion that the sentence imposed was manifestly excessive. We agree with Weinberg JA’s observation that he could not ‘discern, with any clarity, from [the judge’s] sentencing remarks why a combined sentence, for a first offender on an early plea of guilty in the particular circumstances of this case, should not have been regarded as within range.’[17]
[17]Leave Reasons [57].
For our part we are positively of the view that a combined sentence, involving as it does a CCO together with a maximum term of imprisonment of one year, is comfortably within the range of sentences reasonably open in the circumstances of this case. It follows that we consider that the prosecution concession made after instructions by the prosecutor at the sentencing hearing, and repeated by an experienced and senior prosecutor at the leave application, was properly made. If that is correct we cannot comprehend how a total effective sentence of two years and three months can be within the same range.
In reaching this conclusion we are cognisant of the fact that the irresponsible and selfish conduct of the appellant has caused great distress to the complainant, her family and no doubt to the wider school community. Our conclusions must however pay attention to mitigating factors as well as aggravating factors. The appellant’s life is in ruins. He has lost his marriage and his long-time vocation. His reputation is besmirched. We regard the delay in these matters reaching a sentencing court as a significant factor weighing in the appellant’s favour. We agree with Weinberg JA both that the appellant would have been in a state of real uncertainty for the entire three-and-a-half-year period, and that this was a ‘factor to be accorded significant weight by way of mitigation’.[18] Further, we agree with Weinberg JA that the sentencing judge ‘regarded the delay as being of no great importance in the context of this case’.[19] In our view, his Honour undervalued this important mitigating factor. Although this has not been argued as a specific error it provides an explanation as to why the original sentence imposed was manifestly excessive.
[18]Ibid [60].
[19]Ibid [59].
It would be remiss of us not to endorse Weinberg JA’s observations as to the difficulty presented in sentencing in this type of case:
I fully acknowledge the care and attention which the judge devoted to the sentencing task, and the high quality of his sentencing remarks. I am conscious of the weight properly to be accorded to the victim impact statements, which are powerful documents, and reveal just how much damage was done to those who prepared those statements. The objective gravity of this offending cannot be gainsaid.
Nonetheless, it must be borne in mind that the task of sentencing offences of this kind is particularly difficult. It is obvious that the applicant’s conduct had to be denounced, and that general deterrence was a primary sentencing consideration. Yet, it is easy to overlook the fact that the element of breach of trust, which featured heavily in the judge’s analysis of the objective gravity of this offence, is to some extent already built into the elements of the offence, requiring proof that the complainant was in the care, supervision, or authority of the applicant. That factor should not be double counted.[20]
[20]Ibid [61]–[62].
Grounds 1 and 2 are made out and the sentencing discretion is reopened. The appellant has now served approximately six months’ imprisonment in onerous, pandemic-restricted conditions. In our view a total effective sentence of six months’ imprisonment together with a CCO of two years’ duration strikes an appropriate balance between the gravity of the offending and the mitigating factors we have identified. The appellant has been assessed as suitable for a CCO and his risk of reoffending has been assessed as low. The CCO we will impose will incorporate a supervision condition and an offending behaviours programs condition, and will provide for mental health assessment and treatment. Currently all community work programs have been suspended in response to the pandemic. We will thus not impose a community work condition.
But for his plea of guilty we would have imposed a total effective sentence of 15 months’ imprisonment with a non-parole period of 10 months.
We order as follows.
1. The appeal against sentence be allowed.
2. The sentences of imprisonment imposed on the appellant in the County Court on 15 May 2020 on charges 1–10 inclusive be set aside.
3. In lieu of the sentences of imprisonment imposed on the appellant in the County Court, the appellant is sentenced as follows:
(a) On charge 1, to one month’s imprisonment
(b) On charge 2, to one month’s imprisonment
(c) On charge 3, to one month’s imprisonment
(d) On charge 4, to one month’s imprisonment
(e) On charge 5, to one month’s imprisonment
(f) On charge 6, to three months’ imprisonment
(g) On charge 7, to one month’s imprisonment
(h) On charge 8, to four months’ imprisonment
(i) On charge 9, to four months’ imprisonment
(j) On charge 10, to one month’s imprisonment
4. The sentence imposed on charge 8 will be the base sentence. The sentence imposed on charge 1 shall be cumulative on the base sentence. One month of the sentence imposed on charge 6 shall be cumulative on the base sentence and the sentence imposed on charge 1. The total effective sentence is six months’ imprisonment.
5. We declare 186 days, not including this day, have been served as pre-sentence detention.
6. A CCO of two years’ duration is made on all charges, incorporating a supervision condition and an offending behaviours program condition. The CCO will provide for mental health assessment and treatment.
7. All ancillary orders of Judge Tinney made in the County Court on 15 May 2020 are affirmed.
8. Pursuant to s 6AAA of the Sentencing Act it is declared that but for the appellant’s plea of guilty the Court would have sentenced him to a total effective sentence of 15 months’ imprisonment with a non-parole period of
10 months.
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