Daniel Zampatti v The Queen
[2020] VSCA 264
•6 October 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0120
| DANIEL ZAMPATTI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 October 2020 |
| DATE OF ORDERS: | 6 October 2020 |
| DATE OF REASONS: | 8 October 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 264 |
| JUDGMENT APPEALED FROM: | [2020] VCC 628 (Judge Tinney) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 278 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Leave to appeal – Sentence – 10 charges of indecent act with a 16 or 17 year old child under applicant’s care, supervision or authority – Sole complainant – Delay of about 3 years and 6 months between discovery of offending and sentence – Plea of guilty – Total effective sentence of 2 years and 3 months’ imprisonment with non-parole period of 14 months – Whether sentence manifestly excessive – Whether individual sentences infringe totality principle – Both grounds reasonably arguable – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Dr M FitzGerald | Doogue + George Defence Lawyers |
| For the Respondent: | Mr P L Bourke SC | Ms A Hogan, Solicitor for Public Prosecutions |
WEINBERG JA:
On 13 December 2019, the applicant, Daniel Zampatti, pleaded guilty at a committal mention in the Magistrates’ Court to 10 charges of indecent act with a 16 or 17 year old child under his care, supervision or authority. All charges related to the one complainant, whom the judge below referred to as ‘Angela’.[1] A plea hearing proceeded in the County Court at Melbourne on 11 May 2020.
[1]A pseudonym.
On 15 May 2020, the applicant was sentenced as follows:
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 months 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.
By notice dated 19 June 2020, the applicant seeks leave to appeal against that sentence. He does so on the following grounds:
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.
On 6 October 2020, I heard oral argument in this application. At the end of argument, I made orders granting leave to appeal on both grounds. I indicated that I would provide reasons shortly thereafter. These are those reasons.
Circumstances surrounding the commission of the offences
In 2016, Angela was aged 17, and in Year 12. She was born in November 1998. She attended a private school in Geelong. The applicant was aged 35 and was a teacher at that school. He had known Angela since she was eight, and he had given her private music lessons for many years. Indeed, he had assisted her in obtaining a scholarship to the school where he taught. At that school, he had been her classroom teacher in Grade 6, and Years 7, 11, and 12. He was involved in the community concert band, of which she had also been a member.
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.
Sentencing remarks
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.[2]
[2]DPP v Zampatti [2020] VCC 628, [5] (‘Reasons’).
The judge then set out the circumstances of the offending. When he turned to the lies that the applicant had 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 of 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.[3]
[3]Ibid [17], [20].
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 this offence exists … This was not an affair. This was not an equal relationship.’[4] The judge acknowledged, however, that the statements were but one factor to consider in the sentencing task.
[4]Ibid [23].
His Honour then turned to outline the competing submissions on the plea. Counsel for the applicant had submitted that a community correction order (‘CCO’), without any term of imprisonment, would be an appropriate disposition.[5] The prosecutor, however, called for a term of imprisonment, but acknowledged that a combination sentence would be within range.[6]
[5]In that regard, counsel on the plea had referred to Boulton v The Queen (2014) 46 VR 308; [2014] VSCA 342.
[6]Section 44(1) of the Sentencing Act 1991, as at the time of sentence, stated that a combination sentence of a term of imprisonment and a CCO could only be imposed where the total effective sentence, minus any pre-sentence detention, was 1 year or less. See also, Sentencing Act, s 117.
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’.[7]
[7]Reasons, [54].
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’[8] to Verdins[9] principle five.[10]
[8]Ibid [56].
[9]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[10]Ibid 276, [32]. Principle five is enlivened upon the existence of a condition at the date of sentencing (or its foreseeable recurrence) that could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.
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,[11] and the Trial Division,[12] 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.
[11]See generally, Brown v The Queen [2020] VSCA 60, Sazimanoska v The Queen [2020] VSCA 66, Nguyen v The Queen [2020] VSCA 76, and Wyka v The Queen [2020] VSCA 104.
[12]See generally, Re Broes (2020) 279 A Crim R 271; [2020] VSC 128, Re McCann [2020] VSC 138, Re Tong [2020] VSC 141, R v Madex [2020] VSC 145, Re Nicholls (2020) 279 A Crim R 289; [2020] VSC 189, Re Diab [2020] VSC 196, and Re Thomas [2020] VSC 206.
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.’[13] 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.
[13]Reasons, [70].
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.[14] 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.[15]
[14]Ibid [93].
[15]Ibid [95].
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. 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.
Applicant’s submissions
The applicant’s overall submission with regard to ground 1 was that the individual sentences of 3 months’ imprisonment on all charges that involved basically nothing more than kissing and hugging (charges 1–5, 7, and 10), and the orders for cumulation made in relation to those charges, were manifestly excessive. Counsel submitted that offending of that character, though of course morally reprehensible, should be viewed, objectively speaking, as ‘towards the lower end’ of offending of this kind.
With regard to the offences arising from the sexual touching during the weekend in Melbourne (charges 6, 8, and 9), it was submitted that these should be viewed as part of the one episode, and therefore falling within ‘the single transaction rule’. Accordingly, less cumulation than the 5 months fixed in relation to those three charges should have been ordered. It was also submitted that the individual sentences on those three charges (9 months on charge 6, and 15 months on each of charges 8 and 9) were manifestly excessive. In that regard, counsel referred to a number of ‘comparators’ which indicated that there was only one other instance where a sentence of similar length to the 15 months fixed as the base sentence had been imposed for non-penetrative offending.[16]
[16]See generally, DPP v Ryland (a pseudonym) [2014] VCC 845.
In support of the submission that a significantly lower overall sentence should have been imposed, counsel for the applicant relied upon the same mitigating factors that were advanced on the plea, and addressed by the judge in his sentencing remarks.
With regard to ground 2, counsel sought to rely generally upon the same submissions advanced under cover of ground 1, with regard to cumulation.
Respondent’s submissions
Senior counsel for the respondent emphasised the stringency of the test to be applied in an appeal against sentence based upon a ground of manifest excess.[17] His overall submission was that when one considered the objective gravity of the offending, the sentences could not be said to be wholly outside the range. Further, he noted that the applicant made no complaint of specific error on the part of the sentencing judge.
[17]See generally, Clarkson v The Queen (2011) 32 VR 361, 382 [89]; [2011] VSCA 157, Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P), and Wan v The Queen [2019] VSCA 81, [36].
With regard to the gravity of the offending, senior counsel submitted that it was not to the point that Angela had turned 18 in November 2016 and was therefore aged between 17 years and nine months and 17 years and 10 months when these offences were committed. It was submitted that the legislative purpose behind the creation of this particular offence was to ‘prevent even ostensibly mature and consenting teenagers from being subject to the power imbalance that inheres in the relationships that the legislation seeks to protect.’
Further, it was submitted that the fact that the offences could have been dealt with summarily, and typically would have been dealt with in that way, was not of any relevance. Nor was the fact that had the matter proceeded in the Magistrates’ Court, a far lower sentence might have been imposed. The fact was that the applicant had made a forensic choice, whether wise or not, to have the matter proceed in the indictable stream, by straight hand up brief, and he had to wear the consequences of that choice.
With regard to the comparators raised by the applicant, the respondent submitted that they were of limited utility. Current sentencing practice was only one of a number of factors to take into account in fixing a just sentence.
As to the mitigating factors, senior counsel submitted that they had been carefully considered by the sentencing judge, as evidenced in his Honour’s sentencing remarks.
Similarly, with regard to ground 2, the respondent sought to rely generally upon the same submissions advanced under cover of ground 1.
Conclusion
During the course of oral submissions, Dr FitzGerald, who appeared before me on behalf of the applicant, but did not represent him on the plea, began by indicating that he had mistakenly assumed that this matter would be determined on the papers, without an oral hearing. Accordingly, he said that he had little to add to his written case.
Nonetheless, Dr FitzGerald submitted that there were several additional mitigating factors that must have been given insufficient weight in the sentencing synthesis, if the overall sentence imposed were to be explained. He identified delay, a period of some three and a half years from discovery of the offending until sentence, as a matter that should have counted heavily in favour of the applicant. In addition, Dr FitzGerald emphasised the enormous degree of extra curial punishment that the applicant had suffered through widespread publicity in Geelong of what had occurred. That was particularly so because no pseudonym had been used regarding his name or the school at which he taught, and no suppression order had been made. He also pointed to the additional burden that imprisonment had imposed upon the applicant, who, as a result of COVID-19, had been unable to see his children, or have any visitors at all, from the time he was imprisoned in May 2020.
Mr Bourke SC, on behalf of the respondent, emphasised the particular breach of trust associated with this offending, committed as it had been by not just a teacher, but a person who had a longstanding, almost lifelong, relationship with Angela, and a friendship with her parents.
Mr Bourke’s submissions were cogent and extremely fairly put. They may, ultimately, prevail when this matter is heard as an appeal. However, as he acknowledged, it was difficult for the respondent to resist the grant of leave, and to contend that the applicant’s case was not reasonably arguable. That was particularly so, having regard to the concession made by the prosecutor on the plea that a combination sentence of less than 12 months’ imprisonment, with a CCO, would be within range. Mr Bourke did not seek to resile from that concession.
Mr Bourke also acknowledged that there might well be a difference between the objective gravity of an offence involving a victim who, like Angela, was within only two or three months of turning 18, and one who had barely turned 16. That difference might not be very great, but it should not be entirely ignored.
In addition, in answer to a question from me, Mr Bourke acknowledged that, ordinarily, one might expect a person charged with offences of this kind, who was prepared from the outset to plead guilty, to seek summary jurisdiction. Indeed, it is almost inexplicable why that course would not be adopted. One could confidently predict that any sentence imposed by a magistrate for these offences would have been far lower than the sentence that the judge deemed appropriate. Any application for summary jurisdiction would have been difficult to resist, as cases of this kind are dealt with routinely as summary matters. Yet, it seems that no such application was made, and no request was made to the prosecution to consent to any such summary hearing.
I emphasise the prosecutor’s concession on the plea that a combined sentence would have been within range. That concession seems, to me, to have been significant, at least so far as the question of leave to appeal is concerned. It meant that the Crown accepted on the plea that a term of imprisonment of 12 months or less, combined with a CCO, would have been sufficient to achieve all proper sentencing objectives. Plainly, the judge rejected that concession, as he was entitled to do. Yet, for my part, I cannot discern, with any clarity, from his 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. In that regard, I take into account both the principle of parsimony,[18] and the place of mercy,[19] within the exercise of the sentencing discretion.
[18]Sentencing Act, s 5(3).
[19]Guode v The Queen [2020] VSCA 257.
Another matter that concerns me, as Dr FitzGerald submitted, is his Honour’s treatment of delay as a mitigating factor. There was, as the judge noted, a period of just over two years between the time that these offences took place and when Angela ultimately made a formal complaint to police in November 2018. There was then a further, unexplained and unsatisfactory, delay of about a year and a half before the plea was able to be heard, and the applicant sentenced.
The judge regarded the delay as being of no great importance in the context of this case. It seems arguable to me that this significantly understates the weight properly to be given to a delay of that order in circumstances of this kind. As indicated, the applicant’s offending was discovered by his wife in September 2016, and his employment was terminated shortly thereafter. He admitted to what he had done when he wrote to Angela’s parents in January 2017.
Of course, it is entirely understandable that, initially at least, Angela may not have wanted to involve the police. At the same time, it seems to me to be reasonably arguable that the applicant had the distinct possibility of charges being brought against him hanging over his head for close to two years, and then a further year and a half of delay before the matter was finally dealt with. I note that during that first period of two years, civil litigation against the school, arising out of the applicant’s conduct, was foreshadowed by Angela’s family. I think it likely that the applicant would have been in a state of uncertainty for that entire period as to whether he would ultimately face criminal charges. In circumstances where there is no suggestion that the applicant engaged in any further offending of any kind, I would regard that entire three and a half year period as a factor to be accorded significant weight by way of mitigation.
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 for 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.
In short, I am satisfied that the applicant should have leave to present his arguments to this Court by way of appeal. Both grounds seem, to me, to be arguable, though they clearly overlap to some degree.
For these reasons, I granted leave to appeal.
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