Fenner v The The Queen

[2022] NSWCCA 48

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Fenner v R [2022] NSWCCA 48

Hearing dates:

4 February 2022

Date of orders:

11 March 2022

Decision date:

11 March 2022

Before:

Johnson J at [1]
Davies J at [2]
Bellew J at [66]

Decision:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court on 9 October 2020.

4. In lieu, sentence the appellant to imprisonment for 3 years commencing 9 October 2020 and expiring 8 October 2023 with a non-parole period of 1 year 10 months expiring 8 August 2022.

Catchwords:

CRIME – appeals – appeal against sentence – where applicant pleaded guilty to counts of sexual intercourse with young person under his special care – where applicant was teacher of victim – whether sentencing judge erred in not taking into account as mitigating factors that applicant did not have previous convictions and was a person of good character – whether sentence imposed was manifestly excessive – where significant amount of evidence attesting to applicant’s character – where some weight should have been given to good character of applicant – appeal allowed

Legislation Cited:

Crimes Act 1900 (NSW) s 73

Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A

Cases Cited:

Kearsley v Regina [2017] NSWCCA 28; (2017) 265 A Crim R 233

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

SD v R (2013) 39 VR 487; [2013] VSCA 133; 229 A Crim R 580

Stanton v R [2017] NSWCCA 250

Wakim v R [2016] VSCA 301

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Benjamin Fenner (Applicant)
Crown (Respondent)

Representation:

Counsel:
S Howell & C Akthar (Applicant)
E Jones (Respondent)

Solicitors:
Nyman Gibson Miralis (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/224795

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Fenner [2020] NSWDC 732

Date of Decision:

09 October 2020

Before:

Weber SC DCJ

File Number(s):

2019/224795

Judgment

1. JOHNSON J:   I agree with Davies J.

2. DAVIES J: The applicant pleaded guilty in the Local Court to seven counts of sexual intercourse with a young person under his special care and who was of or above the age of 17 years and under the age of 18 years, contrary to s 73(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is four years’ imprisonment.

3. The applicant also asked the Court to take into account eight similar offences on Form 1 documents attached to five of the seven primary counts.

4. On 9 October 2020 he was sentenced by Judge Weber SC in the District Court to an aggregate sentence of three years and nine months’ imprisonment commencing 9 October 2020 and expiring on 8 July 2024 with a non-parole period of two years and three months expiring 8 January 2023.

5. It is convenient to identify the sequences of the primary offences and those offences placed on Form 1 documents, together with the indicative sentences identified by the sentencing judge, when setting out the factual matrix of the offending.

The offending

6. The sentencing judge sentenced the applicant on the basis of a detailed statement of agreed facts which may be summarised as follows.

7. The applicant, who at the time of the offending was aged 33, was a Biology teacher at a private co-educational high school in eastern Sydney. The victim of the offending, AB, was aged 17 at the time. She was a student at the school at the senior campus.

8. In 2017 AB began year 11 studies towards her Higher School Certificate. One of her subjects was Biology, and the applicant was the teacher for AB’s Biology class in 2017 and 2018.

9. In accordance with school policy, the applicant provided his personal mobile phone number to the students, and encouraged them to contact him out of school hours, either by phone, text message or over social media if they required assistance with their studies.

10. At the end of 2017 AB and her class members began year 12 studies in preparation for the HSC the following year. AB was doing a Biology assessment, and she suffered badly from an anxiety attack. She summoned the applicant, told him of her anxiety and asked for assistance. The applicant assisted her with the assessment.

11. In early 2018 AB attended a Biology class with a number of “love bites” on her neck. That evening, AB and the applicant sent messages to each other, initially about Biology class work, but the applicant began to sexualise the messaging. He asked AB about the love bites on her neck, and then asked her about what she liked sexually. She indicated that she liked older men, and was submissive when it came to sex.

12. In April 2018 during the Easter break, AB was continuing to chat with the applicant over Facebook Messenger. They sent each sexually explicit messages, and AB sent the applicant several videos of herself naked and engaged in sexual acts. She also “Face Timed” the applicant whilst she was in the shower.

13. At some point the applicant told AB to move their messaging to WhatsApp. When she did so, the applicant sent a message to AB saying “All the messages on here are encrypted which is great for secrets”.

14. Sequence 1 was constituted by digital penetration of AB by the applicant in the applicant’s motor vehicle, parked in a street near where AB lived. The indicative sentence for this offence was nine months’ imprisonment.

15. Sequence 2 involved the applicant picking up AB from her home and taking her to his place. They watched a movie. They kissed and cuddled, and had penile-vaginal intercourse.

16. Sequence 3 (placed on a Form 1 with sequence 2) occurred two days later on 15 April 2018. The applicant picked AB up from a party held by one of her class mates. He drove AB to a beach at Rose Bay, and AB performed fellatio on him.

17. The indicative sentence for sequence 2, taking into account sequence 3, was one year and nine months’ imprisonment.

18. On 16 April 2018 the applicant picked AB up from her home and took her to his place in Randwick. They watched a movie and performed oral sex on each other. The fellatio and the cunnilingus constituted sequences 4 and 12 respectively, both placed on a Form 1 in relation to sequence 11.

19. The applicant and AB then had penile-vaginal intercourse and that constituted sequence 11.

20. AB stayed the night at the applicant’s home. In the morning when they woke up the applicant and AB had penile/vaginal intercourse. That constituted sequence 5 on the Form 1 attached to sequence 11.

21. The indicative sentence for sequence 11, taking into account the three offences on the Form 1, was two years’ imprisonment.

22. Sequence 6 occurred on 27 April 2018. The applicant picked AB up from her home and they went to the applicant’s unit in Randwick. They engaged in penile-vaginal intercourse.

23. It appears that the indicative sentence for this offence was intended to be one year and six months’ imprisonment. However, the sentencing judge did not indicate a sentence for sequence 6 but did so, apparently in error, for sequence 3, identifying one year and six months as the sentence.

24. Sequence 7 occurred on 28 April 2018 when the applicant picked AB up from her home and they went to the applicant’s unit. They then engaged in penile-vaginal intercourse. On that same occasion the applicant gave cunnilingus to AB, and that constituted sequence 13 on a Form 1.

25. The indicative sentence for sequence 7, taking into account sequence 13, was one year and nine months’ imprisonment.

26. Between 4 April and 11 June 2018 the applicant and AB twice engaged in sexual intercourse at the applicant’s unit in Randwick. On one occasion the intercourse involved digital penetration and on the other occasion it involved penile-vaginal intercourse. Those occasions constituted sequences 9 and 10 which were placed on a Form 1 in relation to sequence 8.

27. Sequence 8 occurred on 11 June 2018. The applicant picked AB from her home and they drove to Kurnell where the Biology class had been on an excursion earlier in the year. They engaged in penile-vaginal intercourse on a rock facing the ocean at Kurnell.

28. The indicative sentence for this offence, taking into account sequences 9 and 10, was two years’ imprisonment.

29. Not long after they started their sexual relationship, the applicant suggested that he and AB try anal sex. On one occasion she let the applicant digitally penetrate her anus. That constituted sequence 14. The applicant then attempted to put his penis inside AB’s anus, but it was too painful for her. That constituted sequence 15 of attempted sexual intercourse contrary to s 73(2) of the Act. Sequence 15 was placed on a Form 1 attached to sequence 14. The indicative sentence for sequence 14, taking into account sequence 15, was one year and nine months’ imprisonment.

30. The applicant now seeks leave to appeal against the sentence on the following grounds:

Ground 1:   The sentencing judge erred in not taking into account as mitigating factors, that the applicant did not have any record of previous convictions and was a person of good character.

Ground 2:   The sentence imposed was manifestly excessive.

Subjective factors

31. The applicant was born in the United Kingdom in 1985. He was the eldest of three children, having two younger sisters. When he was aged 11 his parents separated and divorced. It was an acrimonious breakup and he said his “world fell apart”. The applicant and his sisters remained living with their mother. He had a difficult relationship with his father which culminated in a physical fight when the applicant was aged 18. He and his father thereafter did not speak for a period of some 12 months.

32. The applicant completed a degree in medical science at the University of Leeds. He married a girlfriend he had had from school days, but the marriage lasted only two years.

33. In 2007 he commenced his career as a teacher of Biology, and he continued teaching in the same school until 2014. In 2015 he came to Australia and was employed from early in that year as a Biology teacher at the school where AB was a pupil.

34. He had an unsuccessful relationship with a woman for about eight months, but the breakup of the relationship created severe financial problems for the applicant who declared himself bankrupt in April 2019. The relationship and its breakup caused him to suffer from depression and anxiety. He was treated under a mental health care plan by a psychologist. He told Mr Sam Borenstein, the psychologist who examined him prior to the sentence hearing, that he was in a very vulnerable emotional state when he became involved with AB. He told Mr Borenstein that he understood what he was doing was wrong but he felt he could not extricate himself from the situation in which he found himself.

35. An assessment on the Personality Assessment Screener showed elevated results on acting out, and Mr Borenstein said that this confirmed the applicant’s propensity to act impulsively without considering the consequences of his actions when subject to stress.

36. Results on the Depression Anxiety Stress Scale (DASS21) confirmed moderate symptoms of depressed mood, extremely severe symptoms of anxiety, and severe symptoms of stress. Mr Borenstein considered that the applicant satisfied the diagnostic criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood.

37. The applicant gave evidence at the sentence hearing. He accepted that what he did was wrong, and he knew that what he did was a serious breach of trust. He said that he knew AB was vulnerable and he took advantage of her.

38. More than 25 references were put forward at the sentence hearing from friends, family and people for whom the applicant had worked, including since the time he lost his job as a result of the present charges. The referees all spoke of his good character and work ethic. He also relied on a letter from his treating psychologist, Ms Sheree Simpson.

39. The sentencing judge accepted that the applicant was contrite and remorseful. The sentencing judge also accepted that the applicant’s prospects of rehabilitation were good, and that his risk of reoffending was correspondingly low.

Grounds of appeal

Ground 1:   The sentencing judge erred in not taking into account as mitigating factors, that the applicant did not have any record of previous convictions and was a person of good character

40. In written submissions to the sentencing judge, the Crown accepted that the applicant did not have any criminal record and was a person of good character at the time he committed the first offence against AB. The Crown submitted, however, that those aspects of mitigation “should carry less weight” because the fact that he had no criminal record and was a person of good character enabled his access to the victim, and facilitated his offending.

41. In his Remarks on Sentence (ROS), the sentencing judge said this:

[33]   The Crown accepted that the offender was of prior good character and had no criminal record. That the offender was previously of good character was made clear by a very significant number of character references tendered on his behalf from employers, connections he made through teaching, connections he made through scuba diving, connections made through dog walking, and from general friends and neighbours.

[34]   The Crown submitted, however, that these factors should not be taken into account as mitigating, as it was the offender’s lack of criminal record and prior good character which permitted him to be in a position to be a schoolteacher with access to senior schoolgirls. I agree with this submission. As the offence involves offending by a person whose victims are under his or her care, it seems to me to be likely that it was within the contemplation of the legislature that such persons who commit this offence would ordinarily be of good character and lacking in criminal record.

42. The Crown submitted that the sentencing judge determined at [33] of his ROS that the applicant was of otherwise good character, and went on at [34] to address the question of the weight of that evidence, consistently with what was said by McHugh J in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [36].

43. Although the applicant submitted that the statement by the sentencing judge at [34] that “these factors should not be taken into account as mitigating” involved a misapprehension of the Crown’s submission, and amounted to a determination that the applicant’s prior good character and lack of previous convictions would not be taken into account, the Crown submitted that the statement should be understood in its context as concluding that the mitigating factors should be given less or little weight. The Crown submitted that the sentencing judge did not treat these matters as irrelevant, and he did not omit them from the sentencing balance.

44. In my opinion, the sentencing judge’s statement that those factors “should not be taken into account as mitigating” was a mis-statement of the Crown’s submission, made both in writing and reinforced in oral submissions. The Crown made it clear to the sentencing judge that those factors “should carry less weight”. That is not the same thing as not taking matters into account.

45. The Crown in this Court drew attention to what was said by Johnson J (Adamson and Campbell JJ agreeing) in Stanton v R [2017] NSWCCA 250 at [118]:

...The fact that good character was a condition precedent to him holding the position of a school teacher with access to young children makes it difficult for the Applicant to rely in any meaningful way upon evidence of what is said to be his otherwise good character.

46. Reliance on that statement ignores two matters. First, as Johnson J made clear in Stanton, the applicant’s counsel in that case had not advanced a submission by reference to the suggested otherwise good character of the applicant (see at [119]). Secondly, Stanton was not a case such as Ryan v The Queen where there was a range of references and testimonials of persons who could speak in positive terms of the good works undertaken by the offender in that case (see at [120]).

47. In SD v R (2013) 39 VR 487; [2013] VSCA 133; 229 A Crim R 580, a child sexual abuse case, the sentencing judge had determined that the offender had exploited his good character to allow the offending to occur, and held that less weight should be given to the good character evidence. The Victorian Court of Appeal said:

[30] As is made clear in Ryan, a sentencing judge is always bound to consider the ‘otherwise good character’ of the person to be sentenced. In so doing the judge does not take into account the offences for which he or she is being sentenced. If a person is of good character that fact must always be taken into account. However, the weight to be given to a person’s good character will vary according to the particular circumstances of the case. In contrast to the present case, in Ryan the offences were not isolated, since there were multiple offences over a number of years; and the offences were a breach of trust committed by the prisoner in the context of his role as a priest.

[31] In our opinion, the sentencing judge erred in diminishing the weight to be given to the appellant’s otherwise good character, and in finding that the appellant somehow exploited his good character in order to commit the offences. We agree with the submission of counsel for the appellant that her Honour’s approach had the effect of punishing her client twice for the breach of trust — first by identifying that breach as an adverse sentencing consideration, and second by using it, inappropriately in the circumstances, to diminish the appellant’s otherwise good character.

48. In Wakim v R [2016] VSCA 301 the Victorian Court of Appeal, having quoted that passage, went on to say at [43]:

In cases concerning sexual offences against children, an offender is ordinarily entitled to have his sentence reduced by virtue of his previous good character. The weight to be given to that mitigating feature will depend on the circumstances of any given case.

49. In the present case, the issue of the applicant’s good character was put forward by his legal representative at the sentence hearing. As has been noted, more than 25 references were put forward tending to show the applicant’s good character.

50. Whilst it may be accepted that the applicant was unlikely to have been employed as a teacher at the school if he had a prior criminal record, by the time of the present offending he had been a schoolteacher for almost 10 years. This was not a case involving an offender who deliberately set out to use the benefits of his apparent good character to obtain a trusted position with the specific purpose of committing the offences in mind. For the period he had been a schoolteacher he had demonstrated his actual good character in the course of his employment, as well as in other areas of his life outside of his employment. In that way, not to take these factors into account as mitigating was an error by reason of s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and by reason of what was said in Ryan at [36].

51. The offence contrary to s 73 is not a child sexual offence. In that way, s 21A(5A) of the Sentencing Act does not operate to prevent the applicant’s good character being taken into account.

52. I would uphold this ground of appeal.

Ground 2:   The sentence imposed was manifestly excessive.

53. In the light of the error found in relation to ground 1, it is not necessary for the Court to consider this ground of appeal. Submissions made in relation to manifest excess have been taken into account on the resentencing exercise.

Resentence

54. The Crown submitted that this was not spontaneous or opportunistic offending, in that it extended over more than a two-month period. The Crown submitted that the number of individual offences meant that a reasonable measure of accumulation was necessary, and a significant sentence ought to be imposed.

54. I agree with the sentencing judge’s assessment that the offending fell within the mid-range. I do not consider that there are any aggravating features.

55. The applicant is entitled to a 25% discount for his early plea to reflect the utilitarian value of that plea.

56. I am satisfied from the evidence the applicant gave before the sentencing judge, and from what appears in the reports of Mr Borenstein and Ms Simpson, that the applicant is remorseful for what occurred. I consider his prospects of rehabilitation are good and that the risk of his reoffending is low.

57. The applicant has no criminal record. There was, as I have noted, a great bulk of evidence attesting to character. The applicant was a teacher both in the United Kingdom and in Australia for almost 10 years before this offending occurred. In those circumstances, some weight must be given to the good character evidence.

58. An affidavit from the applicant’s solicitor was read concerning the applicant’s time in custody. Some of his early time in custody was spent in fairly confined conditions because he was in the Special Management Area Placement. He has had a number of jobs within the correctional centres, with the most recent being working in a bakery. He has undertaken the Explore Question Understand Investigate Practise and Success (EQUIPS) Foundation Program. He has also enrolled in the Real Understanding of Self-Help Program. Other sex offender programs have not been available to him because his permanent residency visa has been cancelled by the Australian Border Force.

59. There was unchallenged evidence of intrusive media attention since the time of the applicant’s arrest. In addition, although the fact that the applicant will never work again as a teacher or a dive instructor (as he also had been doing on weekends) cannot be regarded as extra-curial punishment in the circumstances of the offending (Kearsley v Regina [2017] NSWCCA 28; (2017) 265 A Crim R 233 at [76] to [80]), the Crown accepted that his loss of employment could be taken into account in the sentencing process.

60. It is necessary to bear in mind that the maximum penalty for the offence against s 73(2) is imprisonment for four years.

61. Given that the offending involved a course of conduct and a number of individual offences, an aggregate sentence should be imposed. Some notional accumulation is required.

62. I specify the following indicative sentences after the 25% discount:

Sequence 1:      Six months

Sequence 2 (taking into account sequence 3 on a Form 1): 15 months’ imprisonment.

Sequence 6:   Twelve months’ imprisonment.

Sequence 7 (taking into account sequence 13): 15 months’ imprisonment.

Sequence 8 (taking into account sequences 9 and 10): 18 months’ imprisonment.

Sequence 11 (taking into account sequences 4, 5 and 12): 18 months’ imprisonment.

Sequence 14 (taking into account sequence 15): 15 months’ imprisonment.

64. In my opinion, the applicant should be sentenced to imprisonment for three years commencing 9 October 2020 and expiring 8 October 2023 with a non-parole period of one year 10 months expiring 8 August 2022.

Conclusion

65. I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court on 9 October 2020.

4. In lieu, sentence the appellant to imprisonment for 3 years commencing 9 October 2020 and expiring 8 October 2023 with a non-parole period of 1 year 10 months expiring 8 August 2022.

   66. BELLEW J:   I agree with Davies J.

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Decision last updated: 11 March 2022