R v Fenner

[2020] NSWDC 732

District Court

New South Wales

Medium Neutral Citation:

R v Fenner [2020] NSWDC 732

Hearing dates:

17 September 2020

Date of orders:

9 October 2020

Decision date:

09 October 2020

Jurisdiction:

Criminal

Before:

Weber SC DCJ

Decision:

(1) The offender is convicted of the offences which bring him before the Court.

(2) The offender is sentenced to a term of imprisonment of three years and nine months, with a non-parole period of two years and three months.

(3) The Court directs that the term of imprisonment shall commence on 9 October 2020 and that the non-parole period shall expire on 8 January 2023, with the balance to expire on 8 July 2024.

Catchwords:

CRIME — Child sex offences — Sexual intercourse with a young person between 16 and 18 under special care – where the offender was the victim’s teacher

SENTENCING — Objective seriousness — gross breach of trust — the degree of planning — degree of grooming — the nature and number of the acts

SENTENCING — Mitigating factors — Plea of guilty — Remorse and contrition — Rehabilitation — Unlikely to re-offend – where good character and lack of criminal record are not available as a mitigating factors as these are likely to have been within the contemplation of the legislature to be inherent in this offence

SENTENCING — Relevant factors on sentence — Form 1 offences — Deterrence — General deterrence

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Dimian v R [2016] NSWCCA 223

Markarian v The Queen (2005) 228 CLR 357

R v Tadrosse (2005) 65 NSWLR 740

Category:

Sentence

Parties:

Regina (Crown)
Ben Fenner (Offender)

Representation:

Solicitors:
Mr R Kimbell (Crown)
Mr P Gibson (Offender)

File Number(s):

2019/224795

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, and upon the grounds set out in s 8 (1) (d) of that Act, by order of the Court dated 23 July 2020, that there be no publication of the victim’s name.
Pursuant to s 578A (2) of the Crimes Act 1900, that there be no publication of any matter which identifies the complainant, or of any material likely to lead to the identification of the complainant.

Judgment

1. The offender comes before the Court for sentence, having pleaded guilty to seven counts of sexual intercourse with a young person under his special care and who is of or above the age of 17 years and under the age of 18 years. This is conduct contrary to the provisions of s 73 (2) of the Crimes Act 1900 (NSW) (“Crimes Act”). This offence carries a maximum penalty of four years’ imprisonment. There is no applicable standard non-parole period.

2. The offender also asks the Court to take into account eight similar offences on a Form 1. These are also offences contrary to s 73 (2) of the Crimes Act. The Form 1 offences are serious in and of themselves, and have been attached to five of the seven primary counts.

3. A skeletal summary of the counts and the Form 1 matters to which each relates are as follows:

1. Sequence 1 involved an act of digital-vaginal penetration.

2. Sequence 2 involved an act of penile-vaginal penetration, to which offence is attached a Form 1 offence involving fellatio (sequence 3).

3. Sequence 6 is a primary offence of penile-vaginal penetration.

4. Sequence 7 involved penile-vaginal penetration, to which was attached a Form 1 offence involving cunnilingus (sequence 13).

5. Sequence 8 was a primary offence involving penile-vaginal penetration, to which was attached on a Form 1 two offences involving penile-vaginal intercourse (sequences 9 and 10).

6. Sequence 11 involved penile-vaginal penetration, to which was attached on a Form 1 three offences involving fellatio, cunnilingus, and penile-vaginal intercourse (sequences 4, 5, and 12).

7. Finally, sequence 14 involved digital-anal penetration, to which was attached a Form 1 offence involving attempted penile-anal penetration (sequence 15).

THE FORM 1 OFFENCES

4. As the authorities make clear, the Courts should take account of Form 1 offences to increase the penalty for the principal offence in order to take into account the need for deterrence, and the community’s expectation of retribution in respect of the offences charged.

5. Additionally, in situations such as the present where the Form 1 offences are, first, of a substantially similar character to the principal offences and thus are in and of themselves serious offences, it is important for the Court to impose a sentence which reflects the totality of the criminality involved.

6. It follows that the fact that serious matters are taken into account on a Form 1 does not mean they will be only given very little by way of additional penalty to be imposed in respect of the primary offences.

BACKGROUND

7. The matter proceeded by way of agreed facts, which can be summarised as follows.

8. The offender was a biology teacher at a private college in Eastern Sydney. The victim was born in December 2000. She was 17 years of age at the time of the offending, and she was a student at the college.

9. In 2017, the victim began year 11 studies, taking subjects which would count towards her Higher School Certificate, those including biology. The offender was assigned as a teacher for the victim’s biology classes in 2017 and 2018.

10. It was apparently a policy of the school that senior students, such as the victim, should be provided with their teacher’s mobile phone numbers. Senior students were apparently encouraged to contact their teachers out of school hours either by phone, text message, or social media if they required assistance with their studies.

11. In early 2018, the victim apparently attended biology class with a number of love bites on her neck. That evening the offender and the victim were messaging. Initially the messages were about biology class work, before the offender began to sexualise the messaging.

12. The sexualising of the relationship between the offender and the victim continued over time, and escalated to the point of the victim sending the offender videos of herself naked and engaged in sex acts.

13. The first of the principal offences occurred on 4 April 2018. It occurred in the offender’s motor vehicle, which he had parked some distance down the road from the victim’s home. Later events occurred variously at the offender’s home or at the beach. It is unnecessary to set out the further detail of these offences, and given their personal nature, I will not set them out.

14. The offending commenced on 4 April 2018 and concluded on 11 June 2018. As I have indicated, during that period the victim was 17 years of age, while the offender was 33.

OBJECTIVE SERIOUSNESS   

15. The Crown submitted that the objective seriousness of the offending was to be determined as being in the mid-range of offences of this nature. In this regard it pointed to the gross breach of trust involved, the degree of planning, the degree of grooming, and the nature and number of the acts of sexual intercourse involved.

16. The Crown submitted that these events could not in any way be described as opportunistic or spontaneous, or such events in which the offender took advantage of situations as and when they arose. Rather, the Crown submitted that the offender groomed and exploited the vulnerability of the victim, and used his position and power over her.

17. I should add that in relation to the Crown’s submissions concerning breach of trust and vulnerability, the Crown did not agitate these as aggravating matters pursuant to the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”), but rather as going to the issue of objective seriousness.

18. The Crown further relied on the fact that at the time of the offending the offender knew what he was doing was wrong. The offender, who gave evidence before me, candidly admitted that this was the case.

19. For the offender, it was argued, that considering his conduct and what was described as the short period of the offending, these caused the offending to be characterised as falling below the midrange of objective seriousness.

20. I am in agreement with the Crown’s characterisation of the offending as falling in the mid-range, for the reasons advanced by the Crown.

AGGRAVATING FACTORS

21. The Crown relies on the following aggravating factors pursuant to s 21A (2) of the Sentencing Act, namely:

1. That the offence involved a series of criminal acts; and

2. That the offending was planned.

22. I do not believe that these aggravating factors were present in the offending.

23. As to the first matter, I am of the view that it is contrary to principle to take into account the fact that the offender has committed multiple sexual acts where I am sentencing him for those very acts. The Court of Criminal Appeal so found in R v Tadrosse (2005) 65 NSWLR 740.

24. As to the alleged planning, in that regard the Crown submitted that the offender had engaged in a calculated and planned pattern of grooming of the victim, in which he variously induced then seduced, and encouraged and cajoled his victim, up to the point of a sexual relationship between them.

25. Mr Gibson, appearing for the offender, did not accept the description of the offender’s behaviour as grooming, rather he described as “testing the water” type behaviour, which, he submitted, was typical of most relationships which turn sexual, and as such must be considered as within the contemplation of the legislature of being inherent in the offending.

26. I accept the offender’s submissions in this regard, and do not consider that there are any aggravating circumstances to be taken into account pursuant to s 21A.

THE EARLY GUILTY PLEA

27. It was accepted by the Crown that the offender’s early guilty plea entitles him to a 25% reduction on such a sentence that might otherwise have been imposed upon him to reflect the utilitarian value of that plea, and I will grant him such discount.

VICTIM IMPACT STATEMENT

28. That the offending behaviour of the type with which these proceedings are concerned can have the risk of deleterious and long-term effects on the victim can hardly be gainsaid.

29. The victim, in a powerful impact statement which outlined the devastating effects which the offending conduct has had on her, has thus demonstrated that the risks to which I have referred in this case have come home.

30. As the contents of the victim impact statement were necessarily of a deeply personal nature, I do not consider it necessary or appropriate to further outline them here.

31. I should add that the Crown does not rely on the matters set forth in the victim statement as being an aggravating factor.

MITIGATING FACTORS

32. The offender drew my attention to the following as being matters which are present in relation to his offending and are of a mitigating nature, namely:

1. That he does not have a prior criminal record;

2. That prior to his offending, he was a person of good character;

3. That he has demonstrated remorse;

4. That his prospects of rehabilitation were good; and

5. That his risk of reoffending was correspondingly low.

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.

35. The offender gave evidence before me of his contrition, and demonstrated a preparedness to take responsibility for the deleterious effect which his offending has had, especially on the victim, but also on others, and as such demonstrated a degree of insight into the consequences of his offending.

36. In fairness, the Crown did not put in doubt the genuineness of his evidence in relation to his contrition, about which there was no cross-examination. I accept the offender’s contrition and remorse, and will bring it into account as a mitigating factor.

THE OFFENDER’S BACKGROUND   

37. As I have previously indicated, at the time of the offending, the offender was a man of 33 years of age. He was born in January 1985 in the United Kingdom. When he was young his parents divorced, which separation he described, in his evidence before me, as being acrimonious.

38. Upon leaving school he engaged in various forms of employment, though he ultimately trained as a teacher. He gave evidence that he married in England, but that the marriage was of short duration, and acrimonious cessation. The offender immigrated to Australia in February 2015 and quickly gained a teaching position at the college.

39. The offender gave evidence of a number of failed romantic relationships and verified his history which he had provided to Sam Borenstein, a clinical psychologist, as to what he considered to be his failures in relationships. In his report, which was tendered without objection, Mr Borenstein opined that the offender satisfied the diagnostic criteria for an adjustment disorder, with mixed anxiety and depressed mood. He expressed the view: “Mr Fenner was in my opinion in a regressed and low point psychologically leading up to and during the offending”.

40. Mr Gibson accepted that Mr Borenstein’s report did not purport to attribute to any causal link between his diagnosis and the offender’s offending behaviour. He did, however, correctly refer me to authority for the proposition that even relatively minor psychological conditions may be relevant for sentencing purposes. I accept this is the case as a general proposition, but do not believe that there is any evidence before me as to the offender’s psychological condition which can or should lead me to consider that it had a material impact in the sentencing process.

41. I accept that the offender’s prospects of rehabilitation are good, and that his risk of reoffending is correspondingly low. The offender’s evidence of his contrition and remorse suggested to me that this episode has proven to be a salutary one for him, and that there is every reason to believe that upon his release he will revert to being a law abiding member of society. I have taken this into account as a mitigating factor.

GAOL AS THE ONLY APPROPRIATE PENALTY

42. I have come to the conclusion that there is no other appropriate penalty than a term of imprisonment in the present case, and I so find for the purposes of s 5 of the Sentencing Act.

43. The victim was entitled to the educative skills of the offender and his professional support. She was entitled to approach him and deal with him on that basis. She was entitled to do so safely. These legitimate expectations were cruelly dashed. Far from providing her with the support to which she was entitled, the offender used her over a period of months for his own sexual gratification. His conduct deserves the Court’s unequivocal denunciation.

44. It is also essential that any sentence operates powerfully as an instrument of general deterrence. Potential offenders need to appreciate that the Court considers these offences to be of a most serious nature.

SPECIAL CIRCUMSTANCES

45. Both parties were agreed that the following constituted special circumstances for the purposes of s 44 of the Sentencing Act, namely:

1. That it will be the offender’s first time in custody; and

2. The requirement for community based treatment and supervision for sex offending.

46. I find special circumstances.

AGGREGATE SENTENCE

47. I propose to deal with this matter by way of aggregate sentence. I have taken this course as it is in my view this approach best accommodates the requirements of proportionality, accumulation, concurrence, and totality.

48. I am also required to indicate the sentences that I would have imposed for each offence, had separate sentences been imposed rather than an aggregate sentence (s 53A (2) (b) Sentencing Act).

49. In setting forth the following indicative sentences and the aggregate sentence I have taken into account the matters set forth earlier in these reasons in relation to the objective seriousness of the offending. The mitigating factors to which I have referred have also been taken into account. The Form 1 offences have been taken into account.

50. The 25% discount for the early guilty plea has been applied to each indicative sentence and thus derivatively to the aggregate sentence, with rounding down in certain circumstances to the offender’s benefit.

51. In arriving at both the indicative sentences and the aggregate sentence, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357. The following indicative sentences are head sentences (Dimian v R [2016] NSWCCA 223), and are as follows:

52. Sequence 1, nine months.

53. Sequence 2, one year, nine months.

54. Sequence 3, one year, six months.

55. Sequence 7, one year, nine months.

56. Sequence 8, two years.

57. Sequence 11, two years.

58. Sequence 14, one year, nine months.

59. Ben Fenner, stand,

60. You are convicted of the offences which bring you before the Court. You are sentenced to a term of imprisonment of three years and nine months with a non-parole period of two years and three months. I direct that the term of imprisonment shall commence on 9 October 2020 and that the non-parole period shall expire on 8 January 2023, with the balance to expire on 8 July 2024.

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Decision last updated: 26 November 2020