DAVIES v R

Case •

[2019] NSWCCA 45

•

08 March 2019

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Davies v R [2019] NSWCCA 45
Hearing dates: 5 October 2018
Date of orders: 08 March 2019
Decision date: 08 March 2019
Before: Basten JA at [1];
Johnson J at [64];
R A Hulme J at [74]
Decision:

(1)   Extend the time for filing the application for leave to appeal.

 

(2)   Grant the applicant leave to appeal.

 (3)   Dismiss the appeal.
Catchwords:

CRIMINAL LAW – sentence – sexual offences against children – vulnerability as an aggravating factor – whether the judge treated as an aggravating factor an element of the offences charged – whether factors of aggravation taken into account so that offender sentenced for offences not charged – whether abuse of trust and abuse of authority distinguished – The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 discussed

 

CRIMINAL LAW – sentence – pleas of guilty – whether sentencing judge required to indicate the discount applicable to the aggregate sentence – whether judge erred in applying a uniform discount to indicative sentences – whether discount failed to allow for early offers to plead, but pleas entered later

  CRIMINAL LAW – sentence – whether individual indicative sentences manifestly excessive – whether aggregate sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61M, 66A, 66C, 66EB, 91H
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 53A, 54B
Drug Misuse and Trafficking Act 1985 (NSW), s 25A
Criminal Code (WA), s 582
Cases Cited: Bao v R [2016] NSWCCA 16
Elyard v Regina [2006] NSWCCA 43; (2006) 45 MVR 402
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Kassoua v R [2017] NSWCCA 307
McIntosh v R [2015] NSWCCA 184
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
MRW v R [2011] NSWCCA 260
PG v R [2017] NSWCCA 179
Prculovski v R [2010] NSWCCA 274
R v Gavel [2014] NSWCCA 56; 239 A Crim R 469
R v Nykolyn 2012] NSWCCA 219
Suleman v R [2009] NSWCCA 70
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010, p 27867
Category:Principal judgment
Parties: Grant William Davies (Applicant)
Regina (Respondent)
Representation:

Counsel:
D Dalton SC / S Kluss (Applicant)
B Hatfield (Respondent)

  Solicitors:
Ross Hill & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2013/154275
Publication restriction: Non-publication order with respect to the identity of the victims
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
21 October 2016
Before:
Girdham SC DCJ
File Number(s):
2013/154275

Judgment

  1. BASTEN JA: On 21 September 2015 the applicant, Grant William Davies, entered pleas of guilty to 27 counts of sexual offences involving nine children, eight being girls and one a boy. A further count (count 28) alleged that the applicant possessed child abuse material, which included numerous pornographic images of four of the victims.

  2. The applicant ran a dance studio and the offending, which took place over a 13 year period between 2001 and 2013, involved students being trained by the applicant. In addition to the 28 charged offences, there were a further 19 offences taken into account. With respect to one victim, AA, there were nine counts of separate offences, together with seven other offences taken into account on a Form 1. These offences occurred over a period of some four years, the statement of agreed facts setting out her recollection that “similar incidents to those referred to above regularly occurred.”

  3. On 21 October 2016 the applicant was sentenced by Judge Girdham SC in the District Court to an aggregate sentence of 24 years imprisonment, with a non-parole period of 18 years. The sentence was backdated to commence on 17 May 2013, being the date the applicant was taken into custody.

  4. On 24 May 2018, following numerous extensions of time, an application for leave to appeal was filed by solicitors representing the applicant. As this date was a month beyond the last extension of time granted by the Registrar, a further extension is required to pursue the application. In some cases a belated application to set aside a judgment and resentence an offender will give rise to concerns for the interests of victims and others with direct involvement in the offending or the sentencing. No issue was raised in this respect in the present case. An extension to the date of filing is not opposed and should be granted.

Summary of offending

  1. To the extent that it is necessary in order to deal with the grounds of appeal, more detail will be recounted below as to the actual offences. It is sufficient for present purposes to set out the summary of the offending prepared by the sentencing judge. [1]

    1.    Sentencing judgment, 21 October 2016, pp 3-5.

“• Seven counts of aggravated sexual intercourse without consent, pursuant to s 61J(1) of the Crimes Act 1900 with a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years (counts 1, 3, 4, 5, 10, 11 and 26).

• Three counts of sexual intercourse of a child between the ages of 10 and 14, pursuant to s 66C(1) of the Crimes Act 1900 maximum penalty of 16 years imprisonment (counts 6, 8 and 13).

• One count of attempted aggravated sexual intercourse with a child between the ages of 10 and 14 contrary to s 66D and s 66C(2) of the Crimes Act 1900 maximum penalty of 20 years imprisonment (count 12).

• One count of aggravated sexual intercourse with a child between the 14 and 16, pursuant to s 66C(4) of the Crimes Act 1900 for which a maximum penalty of 12 years is provided (count 9).

• Four counts of aggravated indecent assault, pursuant to s 61M(1) of the Crimes Act 1900 maximum penalty of 7 years imprisonment (counts 2, 7, 14 and 15) and a standard non-parole period of five years is provided in relation to counts 2, 7 and 15.

• Three counts of aggravated indecent assault, pursuant to s 61M(2) of the Crimes Act 1900 maximum penalty of 10 years imprisonment, a standard non-parole period of eight years is provided (counts 17, 21 and 22).

• One count of cause or procure a child above the age of 14 to produce child abuse material, contrary to s 91G(2)(b) of the Crimes Act 1900 maximum penalty of 10 years (count 16).

• Three counts of produce child abuse material, pursuant to s 91H(2) of the Crimes Act 1900 maximum penalty of 10 years imprisonment (counts 18, 20 and 24).

• Two counts of procure child under the age of 14 years for the production of child abuse material, pursuant to s 91G(1)(b) of the Crimes Act 1900 maximum penalty of 14 years imprisonment (counts 19 and 23).

• One count of aggravated act of indecency towards a child aged under 16 years, pursuant to s 61O(1) of the Crimes Act 1900 maximum penalty 5 years imprisonment (count 25).

• One count of groom child for sexual activity contrary to s 66EB(3) of the Crimes Act 1900 maximum penalty of 12 years imprisonment (count 27).

• One count of possess child abuse material contrary to s 91H(2) of the Crimes Act 1900 maximum penalty 10 years imprisonment (count 28).”

  1. The sentencing judge indicated the sentences which would have been imposed with respect to the individual counts, had the offender not been sentenced to an aggregate sentence. In considering the timing of the pleas, she noted a range of discounts proposed by counsel varying from 10% to 20%. In accordance with current practice, she applied the discount to the individual sentences. Rather than apply different discounts to different offences, all pleas being entered at one time, the judge adopted a common discount of 12.5% for the putative sentence on each offence.

Grounds of appeal

  1. The application for leave to appeal set out five grounds, the first of which was based upon a typographical error in the judgment and was properly abandoned.

  2. In the course of the hearing, senior counsel for the applicant sought leave to amend ground 2. The Director opposed the grant of leave, but, no prejudice being suggested, there is no reason why leave should not be granted. Indeed the amended ground clarifies one of two issues at the heart of the case.

  3. Accordingly, the grounds to be considered are as follows:

“2. Her Honour erred in her assessment of the age of the children as ‘vulnerable’ such as to constitute an ‘aggravating’ feature pursuant to s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999; and other matters of aggravation such as being under the applicant’s authority with regard to counts 6 and 8 (and the four matters taken into account with respect to those counts on form 1 documents) as this would constitute the more serious offence pursuant to s 66C(2) of the Crimes Act 1900 ….

3.   Her Honour erred in the assessment of the utilitarian value of the pleas of guilty.

4.   The indicative sentences imposed in relation to counts [1-26] are manifestly excessive and demonstrative of error in the aggregate sentence.

5.   Her Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to [be discerned]) and the sentences are manifestly excessive.”

  1. Ground 2 raised an issue of principle with respect to the identification of “aggravating factors” pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) and the principle explained in The Queen v De Simoni,[2] precluding the sentencing judge from taking into account a circumstance of aggravation that would render the accused liable to a greater maximum punishment. As will be seen, the issue raised has sufficient merit to warrant a grant of leave to appeal.

    2. (1981) 147 CLR 383; [1981] HCA 31.

  2. Grounds 4 and 5 are inter-related. There can be no appeal against what are described (somewhat inaccurately) in ground 4 as “the indicative sentences imposed”; no sentences were imposed with respect to the individual counts. Where the judge intends to impose an aggregate sentence, he or she is required to state the individual sentences which would have been imposed had the offender been separately sentenced for each offence. [3] However, the sentences so indicated may be based upon error, thus affecting the length of the aggregate sentence. That ground may be considered with ground 5, alleging that the aggregate sentence was manifestly excessive. Given the length of the sentence imposed in the present case, it is appropriate to grant leave to appeal with respect to those grounds.

    3. Sentencing Procedure Act, s 53A(2).

  3. In those circumstances, it is also appropriate to grant leave to appeal with respect to ground 3 (concerning the discount for pleas of guilty), although taken by itself, it is doubtful that such leave would have been granted.

Ground 2 – aggravating factors

  1. Ground 2 has two limbs: the first concerns the judge’s conclusion that the victims of the various offences were “vulnerable”, being an aggravating factor pursuant to s 21A(2)(l) of the Sentencing Procedure Act, because they were very young. The second limb is directed to a separate matter of aggravation, namely that the victims were under the applicant’s authority. This was an element of the more serious offence under s 66C(2) of the Crimes Act 1900 (NSW), as well as being an aggravating factor on sentencing, pursuant to s 21A(2)(k) of the Sentencing Procedure Act. It was said to be an error to take this circumstance into account in sentencing for an offence under s 66C(1).

(a)   vulnerability

  1. Dealing first with the element of vulnerability, the children varied in age from 9 years to 15 years, with some offences being committed on the same child at different ages. This limb of the complaint was that offences committed against a victim who was between the ages of 10 and 14 involved an aggravated offence, young age being the element of aggravation. At least in this context, age was merely one form of vulnerability.

  2. In dealing with counts 1-9 (involving AA), the judge noted that AA was born in November 1990 so that she was between 10 and 14 during the period of the offending. Accepting that the element of aggravation in respect of seven offences was that the victim was under 16 years of age, the judge stated: [4]

“However, AA was four years short of the age range, [the] defence acknowledged that she was vulnerable so as to attract the aggravating factor of s 21A(2)(l) (defence submissions, at para 9).”

4.    Sentencing judgment, p 39.

  1. After the general statement, the judge dealt separately with counts 1 and 3 and counts 4 and 5, all being offences contrary to s 61J with respect to which the victim had to be under 16 years. As will be noted below, the judge dealt separately with counts 6 and 8 which were offences contrary to s 66C, the threshold age being 14 years. [5]

    5.    Sentencing judgment, p 41.

  2. The applicant submitted that any concession made before the sentencing judge could not provide an answer to a complaint that the judge had erred in law in taking the factor into account, referring to Suleman v R. [6] The first question is, however, whether error was established.

    6. [2009] NSWCCA 70 at [26] (Howie J).

  3. The applicant made two submissions. The first was that the legislature had fixed a “carefully calibrated set of offences based upon age”, distinguishing an offence committed against a child under 10 years of age (s 66A), a child aged between 10 and 14 years (s 66C(1) and (2)), and a child aged between 14 and 16 years (s 66C(3) and (4)). Thus, the first submission suggested that the trial judge was in error in distinguishing between a child aged between 10 and 12 years, and a child aged between 13 and 16 years.

  4. That submission did not adequately describe what the sentencing judge had done. Indeed, the submission appeared to confuse two grounds of complaint. On the one hand, it appeared to invoke the principle in De Simoni, despite the aggravating feature not creating a more serious offence. There is nothing, however, in De Simoni to suggest that matters of aggravation which do not lead to the characterisation of the offending as a more serious offence cannot be taken into account in sentencing for the offence actually charged.

  5. The other submission equated the concept of vulnerability with age, so that it was, in effect, simply another way of stating an element of the offence, with the result that there was a risk of double-counting. That is, in accordance with the last sentence of s 21A(2), the Court is not to have “additional regard” to an aggravating factor which is an element of the offence.

  6. An issue was raised with senior counsel for the applicant in the course of argument as to how the Court should distinguish between circumstances of aggravation and matters which were routinely taken into account in determining where the offending lay on a scale of moral culpability. This issue arose in Elyard v Regina,[7] a case involving a challenge to a term of imprisonment imposed for the offence of aggravated dangerous driving occasioning grievous bodily harm and reliance on, as a circumstance of aggravation, the offence having been committed “without regard for public safety”. After referring to the prohibition against having “additional regard” to elements of an offence, I said:

“[10] To give effect to the underlying purpose of the prohibition, differences in language between the definition of elements of an offence and the statement of aggravating factors, must be borne in mind, as must the purpose underlying the inclusion of a particular element in a particular offence. Such a purposive approach should be applied to the constraint contained in the last sentence of sub-s (2), as a more semantic approach to the language of the various paragraphs may otherwise fail to avoid the risk of ‘double-counting’, being the result which is clearly intended. As a matter of principle, it follows that characteristics of an element of an offence should also not be treated as aggravating factors if they merely reflect the policy underlying the offence. There can be no doubt that the inclusion of the circumstances of aggravation identified in s 52A(7) of the Crimes Act are intended to prohibit conduct which may well occur in disregard of public safety, because the conscious creation of a drug-affected state, combined with the act of driving a motor vehicle, will usually satisfy that description. Accordingly, acting without regard for public safety should not, in such a case, be given additional effect as an aggravating factor in its own right, unless the circumstances of the case involve some unusually heinous behaviour, or inebriation above the statutory precondition.

[11] Because, as noted above, elements of an offence are not irrelevant considerations in identifying an appropriate sentence, it will often be important for sentencing judges to identify with some clarity the way in which they have regard to particular factors. Use of the expression ‘aggravating factors’, without qualification, is likely to suggest that the matter has been relied upon as falling within the positive mandate of s 21A(2). Nor is the use suggested above the only legitimate use for such considerations. By parity of reasoning, the use of an aggravating factor as defined, which may constitute an element of, or characteristic inherent in or generally appertaining to, a particular offence, may assist in a comparative exercise. For example, it may allow a logical extension to be made from guidelines specified with respect to the ordinary offence, so as to give guidance with respect to sentencing for the aggravated offence.”

7. [2006] NSWCCA 43; (2006) 45 MVR 402.

  1. Howie J in Elyard, having referred to such an offence being committed “without regard for public safety” continued:

“[41]   However, a similar problem arises with other factors of aggravation set out in the section. It has been identified in cases of child sexual assault in relation to the aggravating factor that the victim was vulnerable: see R v JBD [2005] NSWCCA 102 but cf R v Pearson [2005] NSWCCA 116. The vulnerability of the child may or may not be an aggravating factor under the section depending upon the age of the child and the nature of the offence. This is because it is an inherent characteristic of the class of child sexual assault offences that the child is vulnerable.

…

[43]   So in relation to offences of aggravated dangerous driving causing grievous bodily harm or death, it will almost inevitably be the case that it is an inherent characteristic of the class of offence that it is committed without regard for public safety. And this will be so whether the lack of regard is viewed on an objective or subjective basis. Yet the prohibition against taking that aggravating factor into account is not universal because, in a particular case the lack of regard for public safety may be so egregious that it transcends that which would be regarded as an inherent characteristic of the offence.”

  1. The introduction of the non-statutory concept of an “inherent characteristic” of an offence as falling within the prohibition in the last sentence of s 21A(2) is capable of becoming a misleading mantra. It has been applied in relation to par (o) in s 21A(2), referring to the commission of an offence “for financial gain”. However, even where an offence involves supplying a prohibited drug “for financial or material reward”,[8] financial gain has been held to be an aggravating factor if it is “significant, that is more than might be expected in the lowest level of offending for this type of offence”. [9] I suggested in Kassoua v R:[10]

“[13]   In short, Howie AJ was making the unremarkable point that although financial gain or reward was an element of the offence, it was still possible to take it into account as an aggravating factor so long as it was a ‘significant’ level of gain or reward. The purpose for which it was taken into account was to assess the objective seriousness of the offending. The point is unremarkable because, in almost every case, the court will have regard to the quantity of drug involved even though the minimum quantity is an element of the offence. However, there is a risk in generalising the observation and applying it in cases where financial reward is not an element of the offence. In particular, it would be wrong to rewrite s 21A(2)(o) so that the phrase ‘for financial gain’ was read as if it said ‘for a financial gain which exceeded that which might be expected in the lowest level of offending for this type of offence’. To impose such a constraint would be wrong and would tend to overcomplicate the sentencing process.”

8. Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1), discussed in Prculovski v R [2010] NSWCCA 274 at [43] (Howie AJ).

9. Prculovski at [43].

10. [2017] NSWCCA 307.

  1. The vulnerability of a victim is not an element of the sexual assault offences; that is, it is not something that needs to be independently proved by the prosecution. The relevant element is age. Although young age is undoubtedly a source of vulnerability, neither very young age nor vulnerability are necessary elements of the offence which should not be given “additional regard” because the effect of that would be to double-count a single factor. There are two reasons why that is so. The first is that the offences involved a range of ages, from 10 through to 16. Whilst it may be considered that levels of maturity will vary between individuals, as a general consideration, children at the lower end of the range are likely to be less mature and more vulnerable than older children within the same range. Further, although the applicant submitted that vulnerability was an individual consideration, like maturity, which could not be addressed in the abstract, there is no reason to impose such a constraint on a sentencing judge. It was entirely appropriate for the judge to take into account the fact that a younger child would have an increased level of vulnerability, merely as a factor of age. The sentencing judge was entitled to have regard to the likelihood that both physical and mental maturity would increase with age. There was no error in this aspect of the reasoning of the sentencing judge.

  2. Furthermore, the judge was entitled to state her approach in respect of this issue succinctly, given the concession by counsel for the offender that she was entitled to approach the matter on this basis, there being no error of law involved. Nothing in Suleman requires this Court to go behind a concession as to the facts.

(b)   abuse of authority

  1. The sentencing judge dealt with this issue first in relation to six counts (counts 1, 3, 4, 5, 10 and 11) in respect of offences under s 61J of the Crimes Act. These offences involved sexual intercourse without consent of the victim. The judge noted that the prosecutor had relied on a combination of the age of the victim, and that the offender was in a position of authority and trust to demonstrate lack of consent. With respect to those offences the judge did not take abuse of the offender’s position of authority and the breach of trust into account as a circumstance of aggravation as to do so would have been to double-count these elements. [11]

    11.    Sentencing judgment, p 40.

  2. With respect to counts 6 and 8, the judge noted that “[c]onsent is not an element of the offence and so full weight can be given to the fact that each was committed whilst the victim was under the offender’s authority and in breach of trust.” [12] The judge then proceeded to address a defence submission that the complainant’s “willingness” was relevant to the level of objective seriousness, noting that “[c]onsent is not a mitigating factor in relation to such offences.” She concluded that each of counts 6 and 8 was a very serious example of offending of its kind and each was “above mid-range.”

    12.    Sentencing judgment, p 41.

  3. The applicant submitted that this approach contravened the De Simoni principle, namely that an element which would constitute an aggravated form of the offence, carrying liability to a greater penalty, must be disregarded where the offence charged is the simple form of the offence, without aggravation. Perhaps because of the context in which the issue was addressed with respect to the s 66C(1) offences, the problem was overlooked.

  4. The Director’s primary response to this challenge was that, it was an agreed fact that there was a relationship of trust between the offender and AA’s mother, as a result of which AA spent time at the offender’s home. It was further submitted that with respect to offences which occurred at his home, as opposed to offences at the dance studio, there had been no charge of the aggravated offence because the victim was not then under the offender’s authority. Further, it was submitted that there was a close relationship between the concepts of abuse of trust and abuse of authority, as discussed in MRW v R,[13] the Chief Justice noting that “abuse of trust and abuse of authority, are distinct concepts although commonly arising out of the same facts.” That being a case where abuse of authority was an element of the offence, the Court held that there was no error in taking abuse of trust into account as an aggravating circumstance, although care was to be taken not to give undue weight to that as an additional circumstance.

    13. [2011] NSWCCA 260 at [77].

  5. The sentencing judge addressed the question of abuse of trust in the following terms: [14]

“There can be no doubt that the offender was also in a position of trust in relation to each complainant or victim. Each child was entitled to trust him to care for them and provide them with a safe and secure environment. By placing his selfish interests above their welfare, the offender grossly abused and exploited their trust …. Additionally, each child’s respective parent or parents trusted the offender to care for their child or children whilst he was coaching them or whilst a guest under his roof.

Before leaving this issue, I appreciate, as has been urged on me by defence counsel, that the courts have acknowledged a degree of overlap between the offence constituting a breach of trust and an offence in which a victim is under the offender’s authority: see MRW….”

14.    Sentencing judgment, p 36.

  1. It must be accepted that the judge did not, in addressing counts 6 and 8, distinguish between abuse of a position of authority and breach of trust; indeed, she appeared to consider both aspects were engaged in relation to the offences in the offender’s home. Nevertheless, in the circumstances of this offending, there was a point of distinction between the concepts of breach of trust and abuse of authority. The latter was concerned squarely with the relationship between the offender and his victims. The former had regard not merely to that relationship but also to the fact that the parents of the victims placed trust in the offender to care for their respective children. On one view it may be said that the close relationship of the concepts means that, on the facts, reference to either may be sufficient to engage the De Simoni principle. On the other hand, there may have been significance, as submitted by the Director, in the fact that the offences of sexual intercourse which occurred at the offender’s home were not committed in the course of his role as a dance teacher and, if a narrow view were taken of abuse of authority, would not satisfy the aggravated offence.

  2. To the extent that the De Simoni operates as a restraint on the manner in which aggravating circumstances can be taken into account in accordance with the general law, it must be applied in giving effect to s 21A of the Sentencing Procedure Act because s 21A(4) requires that the court not have regard to a particular aggravating or mitigating factor in sentencing “if it would be contrary to any Act or rule of law to do so.”

  3. However, the precise scope of De Simoni is not beyond doubt. The case was concerned with a provision in the Criminal Code (WA), s 582, which provided that “[i]f any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.” In giving effect to that obligation, Gibbs CJ had regard to the common law principle to establish that the provision included a prohibition on such a circumstance of aggravation being taken into account upon sentencing, if it had not been pleaded and if pleaded, would have rendered the offender liable to a greater punishment, that is by way of the maximum penalty for an aggravated form of the offence.

  4. That principle has been applied routinely since the decision in De Simoni in 1981. The uncertainty arises in a case, such as the present, where a plea is accepted to the non-aggravated form of the offence, but where a circumstance which is, at the least, similar to a circumstance of aggravation forms part of a statement of agreed facts prepared for the purposes of sentencing. On any view it would be an error to sentence the offender on the basis that he was liable to an offence which carried a maximum penalty in excess of that to which he had entered a plea; on the other hand, in assessing matters relevant to the sentence for the lesser offence, there is no express indication in De Simoni that the judge would be obliged to ignore an element in a statement of agreed facts.

  5. The sentence in De Simoni was imposed following a trial and conviction. It appears to have been accepted on the sentencing hearing that the wounding, which constituted the circumstance of aggravation, had occurred as alleged by the prosecutor and was not disputed by the offender. That consideration, nevertheless, differs from those which operate where a plea has been accepted by the prosecution on the basis of agreed facts.

  6. In any event, it is not necessary to determine this issue solely by reference to an agreed fact which is clearly stated in terms of an element of the aggravated offence. The particular fact in question involved the abuse of trust, as alleged in the statement of agreed facts “of both [AA] and her mother, who let her daughter stay overnight at the offender’s home.” [15] This fact is formulated in terms which differ from the principal basis upon which abuse of authority was established, namely the offender’s professional role as a dance teacher. Even if the sentencing judge referred to the victim being under the offender’s authority with respect to counts 6 and 8, she also referred to the breach of trust. There was no submission put to the sentencing judge that use of such language might have given rise to a difficulty with the application of the De Simoni principle. Rather, it reflected the fact that the judge was sentencing on the basis of the agreed facts accepted as the basis of the pleas.

    15.    Statement of agreed facts, par 27.

  7. The second limb of ground 2 should be rejected.

Ground 3 – discount for guilty pleas

  1. In accordance with current authority, the sentencing judge applied the relevant discount, pursuant to s 22 of the Sentencing Procedure Act, in identifying the individual sentences which would have been imposed for the separate offences. [16] Although no different approach appears to have been suggested to the sentencing judge, the applicant’s written submissions stated that “in the exercise of the indicative and aggregate sentencing regime a fundamental problem [arose, namely] that despite the fact that the indicative sentences may be perfectly sound, and attended by a discount with the aggregate sentence informed by them, the ultimate sentence may lose all trace of the discounts that are applied to them in the aggregation (accumulation) process”. [17] The submissions further asserted that “despite the saving of a long, difficult and emotionally damaging trial to the victims the effect of the discount applied is largely lost in the aggregate sentence, if it is only applied to the individual sentences.” [18]

    16. See PG v R [2017] NSWCCA 179.

    17.    Applicant’s written submissions, par 147.

    18.    Applicant’s written submissions, par 148.

  2. This complaint is, in effect, that there is a lack of transparency in failing to indicate the discount which was applied with respect to the aggregate sentence, particularly in circumstances where, as here, there is an extreme discrepancy between the total of the putative sentences indicated for the individual offences and the aggregate sentence. Thus, although the aggregate term of imprisonment was 24 years, the total of the putative sentences for the individual offences was in the order of 150 years.

  3. This complaint raises no appealable error. It may be accepted that where, as in the present case, there must be very substantial concurrency, the relationship between the individual sentences give little guidance to the length of the aggregate sentence. The effect of discounting the individual sentences will have little effect on the sentence imposed. Indeed, if individual sentences had been imposed, the principle of totality would have overwhelmed the effect of discounting each sentence by 12.5%.

  4. The primary challenge was to the adoption of a uniform discount for all offences. With respect to this issue the relevant passage in the reasoning of the sentencing judge read as follows: [19]

“The defence accepted the pleas were late in terms of their timing, entered on 21 September 2015, after the trial was listed on 14 September 2015. However they noted that negotiations concerning the pleas had begun from March 2014 and there were offers to plead to certain charges at committal, which were rejected by the Crown but offered by the Crown at a later date. The defence submitted that due to the late reliance of the Crown on s 61HA(4) and s 61HA(6) in relation to counts 1, 3, 5, 10 and 11, the offender should receive a discount of 20% for those counts, and the other count[s] should receive a discount of 15% or at least 10% to reflect the greater difficulty of assembling the relevant evidence and the length and complexity of trial ….”

19.    Sentencing judgment, pp 48-49.

  1. The applicant also complained of the reference in this passage to a 20% discount for the nominated offences, on the basis that he had sought a discount of 25%. However, that was not correct; the discount sought for those offences was 20%. [20] A discount of 25% was sought for counts 6, 8, 9, 12, 21 and 22, in respect of which pleas were proffered, but rejected, at committal, namely as to the s 66C offences (counts 6, 8, 9 and 12) and the s 61M(2) offences (counts 21 and 22), all of which were ultimately accepted. [21]

    20.    Defence submissions on sentence, 20 May 2016, par 61.

    21.    Defence submissions on sentence, par 59.

  2. In the course of the hearing on 27 May 2016 the sentencing judge asked the prosecutor for a chronology to demonstrate the timing of the pleas, given the submissions based on the plea negotiations. [22] The prosecutor’s immediate response was that there had been ongoing negotiations in the Local Court which were “largely in the nature of without prejudice global attempts to settle it”. The matter was then adjourned for the judge to read the tendered material and for the parties to prepare further submissions.

    22.    Tcpt, 27/05/16, p 13(30).

  3. The matter came back before the sentencing judge on 10 June 2016, at which time defence counsel made some very general statements in relation to the plea negotiations. He described the negotiations with respect to AA as commencing with serious charges under s 61J, noting “there was a time when some of those matters were going to be turned into 66C’s and then they went back to 61J’s again.” [23] The prosecutor objected on the ground that there had been “without prejudice negotiation” and that the offers were “global” and nothing was resolved. Counsel for the defence conceded that there was little more he could say [24] and moved on to other issues.

    23.    Tcpt, 10/06/16, p 12(10).

    24.    Tcpt, p 12(23).

  4. In the event, there was no chronology of when particular charges were formulated or agreed upon. The only propositions which were agreed and relied upon by the sentencing judge were that there had been continuing negotiations from March 2014, but the pleas were not entered until September 2015. The prosecutor conceded that an across the board 10% discount would be appropriate; the judge allowed something for the period of negotiation, fixing on the figure of 12.5%.

  5. Relying upon the decision of this Court in Bao v R [25] the applicant contended that it was inappropriate to give an across-the-board discount in respect of multiple offences because, in indicating the putative sentences for individual offences, it was necessary to apply s 22 of the Sentencing Procedure Act by reference to each individual offence.

    25. [2016] NSWCCA 16 (Bathurst CJ, Hoeben CJ at CL and R S Hulme AJ).

  6. Bao is not authority for the proposition that, in all circumstances the same discount cannot be given for multiple offences. It is certainly not authority for the proposition that, where all pleas were entered at the same time, the same discount cannot apply to all offences. Bao was concerned with six counts which fell into two groups, with early pleas being entered with respect to one group (two offences) and late pleas with respect to the other group (four offences). It was conceded that the early pleas were entitled to a 25% discount and the late pleas were entitled to 10%. The judge applied an across the board average of 17.5%. It was said that this error “was of significance and may well have affected the aggregate sentence to the detriment of the applicant”,[26] although how the detriment arose was not explained, perhaps because the ground was conceded by the prosecutor. In any event, the case is of no assistance to the present applicant. The sentencing judge had no information as to the negotiations with respect to 18 counts; the information as to the timing of the negotiations with respect to the other ten counts was imprecise. There were apparently 55 charges at one stage, which figure was reduced to 28 charges and 19 matters on Forms 1. The only established dates were the date on which the pleas were entered and the time when the negotiations started. In those circumstances it was entirely appropriate for the sentencing judge to deal with the putative individual sentences on the basis of an across-the-board discount. Ground 3 should be dismissed.

    26. Bao at [45].

Grounds 4 and 5 – manifestly excessive sentence

  1. Grounds 4 and 5, dealing with manifest excess, may be dealt with together. Ground 4 depended on an assertion that the putative individual sentences were each excessive; ground 5 was a general unparticularised allegation of manifest excess.

  2. Ground 4, as formulated in the written submissions, alleged that the indicative sentences with respect to all counts except counts 27 and 28 were manifestly excessive and therefore demonstrated error in the aggregate sentence. Count 27 involved a single offence under s 66EB(3) (grooming a child for unlawful sexual activity); count 28 involved an offence under s 91H(2) (possess child abuse material), with a Form 1 involving one further offence. The putative individual sentences were 3 years and 2 years 6 months respectively.

  3. Section 53A of the Sentencing Procedure Act, permitting the imposition of an aggregate sentence of imprisonment for multiple offences, requires that the sentencing court must “indicate to the offender, and make a written record of … the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence”: s 53A(2)(b). In R v Nykolyn [27] R A Hulme J explained the underlying purpose and operation of s 53A in the following terms:

“[58]   The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at: see R v Brown at [17] per Grove AJ. Thirdly, it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence. Fourthly, it assists this Court to assess an appropriate new aggregate sentence if one or some of the underlying convictions are quashed on appeal.

…

[60] These four matters are the types of considerations that informed the inclusion of s 53A(2) in the aggregate sentencing provisions. In the second reading speech for the Crimes (Sentencing Procedure) Amendment Bill 2010, the Honourable Michael Veitch on behalf of the then Attorney General stated:

‘The reasons for setting out the precise details of each sentence are to ensure transparency, reflect criminality and ensure that victims get due recognition. This also makes it easier to adjust an overall sentence when one sentence is changed on appeal. Those principles remain important, but in order to simplify the sentencing process for the judiciary, and for the community's understanding of it, the Government has decided to remove the requirement to specify the precise detail of any overlap between the sentences by allowing it to set one overall sentence and one non-parole period, provided that the court first indicates the appropriate sentence that would have been given for each offence had it been sentenced individually. The amendments will allow the judge to approach sentencing for multiple offences in a simple way when appropriate and lead to a sentence which is simpler and more easily understood by all.’ [28] ”

27. [2012] NSWCCA 219.

28.    New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010 at 27867.

  1. These explanations may be accepted, but the operation of the provision in particular cases is not without its difficulties. Thus, it has been suggested that non-parole periods need not be specified in relation to the individual putative sentences unless they involve an offence with a standard non-parole period. [29] The sentencing judge complied with the requirement to specify a non-parole period with respect to those offences which carried a standard non-parole period, and avoided doing so with respect to other offences.

    29. JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39], proposition 7; Sentencing Procedure Act, s 54B(4).

  2. There are two aspects of the indication of individual sentences which may have given rise to difficulty in the present case. The first is structural. When sentencing for multiple individual sentences, there are two mechanisms by which the principle of totality can be given effect, so that the overall sentence is not seen to be disproportionate to the course of offending. Normally offences committed on different occasions would require separate, cumulative sentences. However, where there are a large number of offences, as in the present case, the imposition of individual sentences, each being commensurate with the particular offending, might require a considerable degree of concurrency to avoid an overwhelming period of imprisonment. An alternative course (though not the preferred course[30] ) involves the reduction of the sentences given for the individual offences, with the same purpose in mind. In practice, imposing individual sentences for multiple offences may implicitly involve a combination of these approaches, where the individual sentences appear low having regard to the offending in question. It seems clear that the sentencing judge, in indicating the putative individual sentences, approached each on the basis that it involved an independent exercise in sentencing, without regard to the other offences. It was not submitted that that approach was erroneous.

    30. Mill v The Queen (1988) 166 CLR 59, 63; [1988] HCA 70; Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [26].

  3. However, there is a further issue which may arise in sentencing for multiple offences, namely that regard should be had to the chronology. As noted in McIntosh v R, [31] early offending would usually attract a degree of leniency which would not be accorded with respect to subsequent offences. There is no statement in the sentencing judgment that the chronological development of the offending was reflected in the putative individual sentences. On the other hand, it is apparent that the offences fell into two groups. The first, being counts 1-15, involved four victims and took place between January 2001 and December 2006. The second set involved offences between September 2009 and May 2013, and involved five further victims. The gap between the offending was significant because, in 2007, there had been complaints of inappropriate conduct with students, as a result of which police had spoken to the applicant who had ceased teaching during the course of an investigation. His wife said he had destroyed his computer at that time. No charges had been laid because the parents of the complainants did not wish their children to be involved in court proceedings. [32] That circumstance, which was noted by the sentencing judge in her reasons, [33] would have allowed for the imposition of higher sentences with respect to the offending which occurred after the offender had been placed on notice that his conduct involved serious criminal activity.

    31. [2015] NSWCCA 184 at [149] and [157].

    32.    Statement of agreed facts, pars 6-10.

    33.    Sentencing judgment, p 2.

  4. The sentencing judge noted that it was necessary to make “an assessment of the relative seriousness of the offences before the Court.” It is not, however, clear that that assessment took into account the continuing offending in the sense of producing a differential between the earlier offences and the post-2007 offending. However, the approach taken appears to have followed the approach of the prosecution and defence submissions, “the defence submission being that most of them fell slightly below or at worst at about mid-range with the Crown stating most of them to be a mid-range and some well above.” [34] The judge made her assessment on that basis and no complaint is made of her evaluative conclusions in that regard.

    34.    Sentencing judgment, p 34.

  5. There is no doubt that the variation in the putative individual sentences reflected the variation in the judge’s assessment of the individual seriousness of the offending in each particular case. The complaint of manifestly excessive sentences may therefore be tested against the sentences indicated for the most serious offending. Counts 4 and 5 involved charges of sexual intercourse without consent of AA whilst aged 12 or 13 years. The offences, pursuant to s 61J(1) of the Crimes Act, carried a maximum sentence of imprisonment for 20 years and a standard non-parole period of 10 years. Counts 4 and 5 were assessed as being above the mid-range of objective seriousness. After describing the range of conduct, including the details of the individual offending, the sentencing judge summarised her reasons with respect to counts 4 and 5 in the following terms: [35]

“Counts 4 and 5 are also offences contrary to s 61J. Each committed at the offender’s home. Count 4 occurred during the day when the victim was 12 or 13, both she and the offender were naked and the offender alternated between performing cunnilingus, count 4, and digital penetration of her vagina. The episode does not appear to be of short duration. Count 5 was a subsequent event on an evening when AA was staying over. The offender left his wife and had the complainant perform fellatio upon him until ejaculation. In my view counts 4 and 5 are each above mid-range of seriousness.”

35.    Sentencing judgment, p 40.

  1. The judge indicated individual sentences of 8 years 4 months (with a non-parole period of 6 years 3 months) and 8 years 2 months (with a non-parole period of 6 years 1 month) for the two offences respectively. Taking into account the discount of 12.5% with respect to each offence, the starting point for count 4 was 9 years 6 months (and 2 months less for count 5). This was close to half the maximum period of imprisonment; the non-parole period in each case was approximately 60% of the standard non-parole period which would apply to an offence in the mid-range of seriousness.

  2. These sentences indicated the serious view taken by the sentencing judge of the offender’s conduct. The subjective case for the offender was not strong. After giving careful and detailed consideration to the psychiatric and other material relevant to that issue, the judge stated: [36]

“As I have said, I consider the level of culpability and responsibility is high. The offender was given a warning when he was investigated in 2007, despite which his criminal acts committed for his own sexual gratification continued. As to the issue of the offender’s depression it would appear that this, as is often the case, is related to his stresses associated with the criminal justice system and that … [there] is nothing to indicate that it cannot be or has not been managed appropriately in custody.

On balance I am prepared to accept the offender is somewhat remorseful, notwithstanding the evidence is untested and by reason of it I have determined to make some modest allowance for it in the appropriate sentence.”

36.    Sentencing judgment, pp 57-58.

  1. It is clear that the applicant obtained no leniency; however, whatever leniency might have been granted with respect to early offending, would have been off-set by the lengthy period of offending and the failure to abandon his exploitation of the students following the investigation by police in 2007. In fact, of the seven offences charged under s 61J(1) of the Crimes Act, the most severe penalty (10 years 6 months with a non-parole period of 7 years 10 months) was imposed with respect to count 26 and involved conduct in 2012. The earliest offences involved sentences of 7 years 8 months and 7 years 10 months (counts 1 and 3), 8 years 4 months and 8 years 2 months (counts 4 and 5) and 8 years and 7 years 8 months (counts 10 and 11).

  2. The judgment on sentence is lengthy, detailed and carefully reasoned. It is devoid of emotional language. Although the sentences indicated for the individual offences are severe, they are carefully calibrated and cannot be characterised as manifestly excessive. Further, given that the offending, including the matters included on Forms 1, involved some 46 individual events which, in some cases were understood to be part of a continuing course of conduct, it is difficult to identify any precise connection between the sentences which might have been imposed for the individual offences and the aggregate sentence the subject of the appeal.

  3. In so far as the aggregate sentence is challenged as manifestly excessive, there is little more that needs to be said. The offending involved an extended period of criminal conduct over a decade, each element of which involved a breach of trust on the part of the offender towards both student and the student’s family; there were multiple victims, and the sole motive was sexual gratification. The guidelines provided by the maximum penalties for many of the offences, and the standard non-parole periods with respect to some, indicate the seriousness with which the offending is viewed in the eyes of the community. There were seven counts involving a maximum penalty of 20 years with a standard non-parole period of 10 years; one count involving a maximum penalty of 20 years without a standard non-parole period; three counts involving a maximum penalty of 10 years with a standard non-parole period of 8 years; together with counts involving procuring a child under the age of 14 years for the production of child abuse material, grooming a child for sexual activity and one count of possessing child abuse material.

  4. In considering general principles, the sentencing judge stated: [37]

“Those who engage in sexually abusing young persons can expect to receive condign punishment. [38] As a matter of principle general deterrence is an important consideration in the sentencing of offenders for sexual crimes involving children. Courts have an important role in protecting children by imposing sentences that will operate as a deterrent to those who may be inclined to engage in such conduct. This is particularly so in cases such as here where the perpetrator is in a position of authority and trust in relation to the victim. [39]

A related objective for the sentencing [process is] denunciation, thereby reinforcing society’s value as an expectation of its members. [40] The sentences that are imposed must reflect the community’s concern about offences, including the sexual abuse of children, recognising the awareness that now exists within our society of the potential for victims to sustain substantial harm as a consequence of such offending. [41]

The offender’s crimes were predatory and persistent, corrupting in the long term and of a nature which the community strongly and rightly condemns. [42] As is now recognised such conduct is destructive, not only by reason of its potential and actual impacts on the individual victims, but also because of the damage occasioned to the community generally.”

37.    Sentencing judgment, pp 5-6.

38. The Queen v JCW [2000] NSWCCA 209; 112 A Crim R 466.

39. R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [20].

40. Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [118] (Kirby J).

41. R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129.

42. See R v S [1985] TASSC 25 at [8].

  1. There can be, and was, no complaint about the approach adopted by the sentencing judge, as indicated in these paragraphs. The aggregate sentence imposed was severe, but was not disproportionate to the nature and extent of the offending.

  2. The appeal against the sentence should be dismissed.

  3. JOHNSON J: I have had the advantage of reading in draft the judgments of Basten JA and R A Hulme J. I agree with the orders proposed by Basten JA.

  4. Except in the areas addressed by R A Hulme J, I agree with the reasons of Basten JA. In those areas, I agree with R A Hulme J.

  5. I make the following general observations concerning the issues raised on the appeal. The sentencing Judge explained in careful, balanced and persuasive terms the reasons for imposition of sentence in this case. No error has been demonstrated in her Honour’s sentencing remarks.

  6. The aggregate sentence imposed in this case was a substantial one. The reasons for imposition of an aggregate sentence of this magnitude are clear enough from the sentencing remarks.

  7. The applicant was born in 1974 and was aged 26 to 38 years in the period of offending from 2001-2013. The offences were committed against nine young victims (eight girls and one boy).

  8. The applicant conducted a dance academy. Using the language of the sentencing Judge, the victims were young dance students, some of whom “aspired to be chosen to perform lead roles in productions”. The applicant “fostered close relationships with the victims and in some instances their mothers”. Doing so “ensured that he had their trust so as to enable access to the children”. The applicant’s students “found him controlling and intimidating and they were anxious to please him”. The applicant “utilised a pattern of conduct and groomed the children for sexual exploitation”. If a victim sought to avoid the applicant or ignore his sexual attention, he would embarrass the student or otherwise deal with the child adversely. Her Honour observed that the applicant had sought to create “an environment of dependency with the victims”.

  9. The applicant’s offending extended to the production of child abuse material in the form of sexually explicit photographs and videos taken of some of the victims.

  10. Persons who conduct dance schools or academies are entrusted by parents to teach and care for young persons, many of whom have hopes and ambitions for success in the challenging area of performing arts. Rather than teach and nurture his young students, the applicant exploited the nine victims over a period spanning 12 years for his own sexual gratification. His offences were accompanied by controlling and manipulative conduct.

  11. As the victim impact statements made in the District Court demonstrate, the victims were harmed in ways extending far beyond the shattering of their dreams for a career in dance. The sentencing Judge had regard to the profound and deleterious psychological effects upon victims of child sex offences: R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at 483 [110]. It was important that the sentences passed for the applicant’s offences recognise the harm done to the victims of these crimes: s.3A(g) Crimes (Sentencing Procedure) Act 1999; R v Gavel at 483 [112].

  12. In sentencing the applicant, the sentencing Judge had regard to all relevant objective and subjective considerations as well as pertinent general sentencing principles including totality. The aggregate sentence represented a measured and proportionate response in all the circumstances of the case. It has not been demonstrated that the sentence is manifestly excessive.

  13. R A HULME J: I am grateful to Basten JA for his draft judgment. Subject only to the following, I agree that an extension of time and leave to appeal should be granted but that the appeal should be dismissed.

  14. A minor part of the applicant's argument under Ground 3 (error in allowance of discounts for pleas of guilty) was that discussed by Basten JA at [38]-[40]. In short, it was contended that in some way the applicant lost the benefit of the discounts allowed in respect of the indicative sentences by the manner in which the judge notionally accumulated those sentences and arrived at the aggregate sentence. I say it was a minor part of the applicant's argument because it occupied a single short paragraph in the written submissions prepared by junior counsel which was not further pursued in the oral argument of senior counsel who appeared at the hearing of the application.

  15. In my view, the point may be disposed of quite quickly. Subject to an observation I will make shortly, such an argument might, perhaps, have some force if it was thought that the degree of notional accumulation was too much. But here, as Basten JA has pointed out, there was an aggregate sentence of 24 years for slightly in excess of 150 years' worth of indicative sentences for 28 offences. Quite clearly, the judge exercised considerable restraint in applying the principle of totality.

  16. The observation that I wish to make in relation to such an issue is this. A contention that an offender has lost the benefit of discounts allowed in respect of individual or indicative sentences because of the manner in which such sentences have been accumulated, or notionally accumulated, is an unhelpful distraction from what is the real issue in a severity of sentence appeal. The real issue is whether the overall or aggregate sentence is manifestly excessive. That may be so in circumstances where the process of accumulation has led to a result that exceeds what is appropriate in reflecting the totality of criminality. The resolution of that issue is not dependent upon whether, and if so to what extent, the individual or indicative sentences were discounted.

  17. The other matter I wish to address is the discussion by Basten JA (at [52]) as to alternative ways in which the principle of totality may be applied. I respectfully agree with what his Honour has said about there being two approaches, with the preferred being that identified by Gummow, Callinan and Heydon JJ in Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [18]-[22], [25]-[26]. However, Basten JA also refers to a "practice" that "may implicitly involve a combination of these approaches where the individual sentences appear low having regard to the offending in question". I perceive his Honour to be speaking of a practice having been discerned from an appellate perspective where individual sentences appear low in respect of the offences to which they relate. I am unaware of any such practice having been endorsed as correct and trust that his Honour's characterisation of it as a "practice" is not misconstrued as such.

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Endnotes

Decision last updated: 08 March 2019

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