R v Gale

[2020] NSWDC 79

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v GALE [2020] NSWDC 79
Hearing dates:	13 March 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to an aggregate sentence of 1 year 8 months (imprisonment) with a non-parole period of 12 months.
Catchwords:	CRIME – sexual offences - young person between 16 and 18 under special care SENTENCING – aggravating factors – breach of trust SENTENCING – extra curial punishment
Legislation Cited:	Crimes Act, 1900 Crimes Act 1914 (Cth) Crimes (Domestic & Personal Violence) Act, 2007 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	The Attorney General’s Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002 (2002) 56 NSWLR 146 Merhi v R [2019] NSWCCA 322 Ryan v The Queen (2001) 206 CLR 267 Kennedy v R [2000] NSWCCA 527 R v KNL [2005] NSWWCCA 260 R v Daetz; R v Wilson [2003] NSWCCA 216 and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 FB v R; R v FB [2011] NSWCCA 217 Einfeld v R (2010) 200 A Crim R 1 Greenwood v R [2014] NSWCCA 64 Whybrow v R [2008] NSWCCA 270 Alameddine v R [2006] NSWCCA 317 Ridley v R [2008] NSWCCA 299 Brown v R [2014] NSWCCA 215 SS v The Queen [2016] NSWCCA 197 R v Blackman & Walters [2001] NSWCCA 121 EF v R [2015] NSWCCA 36 R v Tsokos unreported NSWCCA 16.6.1995
Category:	Sentence
Parties:	Director of Public Prosecution (for the Crown) Brendan Gale (offender)
Representation:	Counsel: Ms Alderton (for the offender)   Solicitors: Ms Morgan (for the DPP)
File Number(s):	2019/2532
Publication restriction:	No publication of the name of the victim or anything that would identify them.

REMARKS ON SENTENCE

1. The offender appeared at the Cootamundra Local Court on 4 November 2019 and entered a plea of guilty to two charges, namely:

1. That (he) between 1 February 2018 and 12 September 2018 at Cootamundra in the State of New South Wales did have sexual intercourse with CS, who was aged 17 years and being provided tuition by Brendan Royce GALE, contrary to s 73(2) of the Crimes Act, 1900; and further

2. That (he) between 1 February 2018 and 12 September 2018 at Cootamundra in the State of New South Wales did have sexual intercourse with CS, who was aged 17 years and being provided tuition by Brendan Royce GALE, contrary to s 73(2) of the Crimes Act, 1900.

2. The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 13 March 2020 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

3. In addition to the substantive matters the offender asks that when passing sentence the court take into account a further charge contrary to s 73(2) of the Crimes Act, which is on a Form 1 document. When passing sentence I will need to apply the principles enunciated in the decision of The Attorney General’s Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002 otherwise referred to as the guideline judgment on Form 1 matters reported (2002) 56 NSWLR 146. Given that this offence is identical in form to the two substantive offences there must be some impact on the ultimate sentence that is imposed.

4. The maximum penalty for the offences to which the offender has pleaded guilty is 4 years imprisonment. There is no standard non-parole period specified in respect of the offences.

Facts

5. The facts are before the Court by way of an agreed set of facts contained within the Crown tender bundle, exhibit A on sentence. The offender was born on 3 July 1977 and accordingly was 40 or 41 at the time of offending and is 42 at the time of sentence. He was a secondary school teacher and had been so employed for 18 years. Between 2005 and the end of term 3 in 2007 he taught sport at a High School and from the beginning of term 3 in 2017 was transferred to another High School as a head teacher.

6. The victim (to maintain her anonymity I will refer to her as the victim) was 17 and a student at the first High School, commencing as a Year 7 student in 2013. The offender tutored the victim directly in 2015. She turned 18 in the middle of 2018. The offending took place between April and June of 2018.

7. In 2016 the victim commenced Year 10 and enrolled in a sport subject taught by the offender. In 2017 the victim was enrolled in the offender’s PDHPE (physical development, health and physical education) class. The offender was friendly and would readily assist the students in their studies. Personal contact numbers were exchanged with all students to enable teachers and students to maintain contact during excursions. From 2016 the victim was set school assignments by the offender. She would send drafts of her assignments to the offender for feedback before submitting her final work. Such communication was by way of email.

8. At the end of Term 3 of 2017 the offender was transferred to the second High School but he told his PDHPE class that he was still willing to assist them with their studies. The victim maintained contact with the offender by email and telephone discussing personal matters as well as the school assignments. The victim commenced Year 12 in 2018 and continued communicating with the offender. The offender provided feedback on work.

9. In April 2018 prior to the commencement of the half-yearly examinations the victim was at the offender’s house for tutoring after being collected by the offender from down the road near her house. The offender leant towards the victim and kissed her with an open mouth on the lips after which the offender asked, “are you OK”, to which the victim said, “yeah”. The victim then kissed the offender back for a couple of minutes. The offender later drove the victim home, dropping her off two doors down the road from her house. They kissed on the lips before parting ways.

10. The offender and victim continued to meet at least twice per week in the lead up to the half-yearly examinations, which arrangement continued beyond the victim’s 18th birthday. The offender would send the victim text messages such as, “good morning beautiful”. The victim continued receiving tutoring and advice in respect of her school work from the offender.

11. Going specifically to the first offence, about one week after the half-yearly examinations towards the end of April 2018 and while the victim was 17 the offender collected her from near her house and drove her to his house. The offender commenced kissing the victim while seated at the table before leading the victim to his bedroom. They both lay on the bed and continued kissing. The offender undressed the victim before taking off his own clothes. The offender performed cunnilingus on the victim, then kissed the victim while engaging in digital penetration.

12. After some short time the offender obtained a condom from a bedside drawer, put the condom on his erect penis and engaged in penile/vaginal intercourse with the victim which continued until the offender moaned briefly and stopped.

13. The offender got up and went to the bathroom and when he returned he asked the victim “Are you OK with what just happened”. They agreed to keep their relationship secret. The offender was married at the time. The victim promised not to tell anyone, got dressed and was later dropped off a couple of doors down from her home.

14. The second offence relates to an occasion between April 2018 and 20 June 2018 prior to the victim’s 18th birthday. The offender and victim met at the home of the victim’s grandparents as the offender was to provide some note cards he had made to assist the victim with her studies.

15. The offender began kissing the victim. They both walked down the hallway to the spare room at the back of the house and the offender touched the victim’s breasts through her clothing. Once in the bedroom the offender removed the victim’s clothing and then his own. The offender performed cunnilingus on the victim and then engaged in an act of digital/vaginal intercourse. After the offender stopped the cunnilingus the victim performed fellatio on the offender.

16. The victim then lay down on the double bed and the offender got on top of her with his penis being erect. When the victim asked about a condom the offender left the room and returned a short time later with a condom, which he placed on his penis. He then had penile/vaginal intercourse with the victim who remembers that the offender ejaculated before stopping.

17. The two of them remained on the bed for some short time before getting dressed. The offender took the victim home.

18. The offence on the Form 1 relates to a further incident that occurred before the victim’s 18th birthday. The offender collected the victim a few doors away from her home in the vehicle and drove to the saleyards, which are on the outskirts of the town and parked. After speaking for a while the offender kissed the victim and then lowered his pants slightly. The victim performed fellatio on the offender. The offender took off the victim’s pants and underpants and engaged in digital/vaginal intercourse.

19. The matter came to police attention when the offender’s wife on 7 September 2018 found an Instagram message thread on the offender’s mobile phone. The conversation between the offender and victim suggested a sexual relationship. A copy of the message thread was provided to police.

20. The offender’s wife told the offender she was aware of the relationship and that she was leaving him. After seeking counselling, the offender’s wife was advised of her own mandatory reporting obligations. On 11 September 2018 she attended the local police station and reported the relationship.

21. Forensic examination of the offenders electronic devices confirmed:

1. Facebook messages were exchanged between the offender and victim;

2. Instagram accounts were located on both mobile phones;

3. A number of images were exchanged between the offender and victim that appear to be of school assignments and examinations and appear consistent with exchanging documents for comments discussion and feedback on school work.

22. The offender was arrested and charged on 3 January 2019 and when offered an interview provided no comment.

Assessment

23. Ms Alderton, counsel for offender, in her comprehensive and helpful written submissions (MFI 1 on sentence), makes a number of submissions as to the seriousness of the matters before the court. The factors in particular to which Ms Alderton referred in her written and oral submissions is that the victim was towards the upper end of the proscribed age range, the age difference between the offender and victim was 22 years, the offending took place over two to three months, the victim was consenting, there was no manipulation or pressure, the conduct is “unremarkable”, on each occasion of penile/vaginal intercourse the offender used a condom and there is no evidence that the victim was injured either physically or psychologically.

24. As I observed at the sentence hearing if the conduct was not consensual then the offender would have been facing far more serious charges. The offender appears for sentence in respect of offences contrary to s 73(2) of the Crimes Act. The age range is 17 to 18 years and therefore 12 months. Given that limited age range the fact that the victim was towards the “upper end” of that range is of very little significance. Various types of intercourse contemplated by the definition in s 61H of the Crimes Act occurred on each of the occasions that are the subject of a charge.

25. Section 73(2) contemplates offending with the victim between 17 and 18 years. In the matter under consideration the acts occurred within an ongoing and utterly inappropriate relationship. The section contemplates consensual sexual activity. The conduct occurred over a period of 2 to 3 months. The offending specifically relates to penile/vaginal intercourse but other acts occurred. There was no manipulation or pressure.

26. The Crown’s position as I understood the submission was the offending was within the mid-range.

27. In all of the circumstances I am of the opinion that in respect of both charges they are within the lower end of the mid-range of seriousness for matters contemplated by s 73(2) of the Crimes Act.

Criminal History

28. The offender was convicted of a High Range Prescribed Concentration of Alcohol offence in 2003 and dealt with by way of fine and disqualification. That is now 17 years ago. Given the offender was a teacher it is not surprising that he has no other criminal convictions recorded against him. The drink driving matter is essentially of no practical significance in this sentencing exercise. The offender was 40 years of age at the time of offending and 42 years of age at the time of sentence. My note and memory is that little attention was paid to this at the sentence hearing and at my request my Associate communicated with the parties who both promptly replied.

29. The Crown refers the court to the decision of Merhi v R [2019] NSWCCA 322 at [43]-[57]. The Crown’s position is that while the prior good character of the offender is a relevant consideration it does not achieve or carry the same weight that it might in other circumstances.

30. Ms Alderton in her brief but helpful supplementary written submissions refers to the decisions of Ryan v The Queen (2001) 206 CLR 267 and Kennedy v R [2000] NSWCCA 527 at [21]. Ultimately Ms Alderton accepts that the offender’s “prior good character carries less weight than if he had committed an offence that had no relationship to his occupation”. She goes on to submit that the offender’s prior good character still has a role to play in the sentencing exercise.

31. Essentially it seems to me that the parties agree with the approach to be taken. The offender is entitled to some degree of leniency because of his prior good record, however the extent of that leniency is not the same as it might have been in other circumstances.

General Deterrence

32. Teaching is a noble profession and one on which the proper advancement of society relies. Teachers have a truly awesome responsibility. They have a responsibility to teach, nurture and encourage young minds. It was entirely inappropriate for the offender to have engaged in the conduct that he did with the victim in this matter.

33. The offending in this matter illustrates a very substantial breach of trust given the position of the offender in relation to the victim. It simply beggars belief that the offender apparently thought it was acceptable to have an ongoing sexual relationship with someone in the victim’s position. There is a need for a significant aspect of general deterrence to be factored into the sentence to be imposed in this matter.

34. The need for general deterrence is amply demonstrated by reference to the Second Reading Speech by the Hon Mark Speakman SC, MP, Attorney General, when s 73(2) was inserted into the Crimes Act. The Honourable Attorney General said:

“School students are required to follow directions and instruction from school workers, not only directions from their day-to-day classroom teacher. This places school workers in a position of trust and authority, which can be misused to manipulate students or make them vulnerable to undue influence or pressure. In this context, consent from a 16- or 17-year-old student to sexual intercourse with a school worker may not be freely given and the child may be vulnerable to sexual exploitation by school workers other than their direct classroom teacher. The amendment will address this issue by explicitly ensuring the offence covers other teachers at the school, as well as covering the principal and deputy principal.”

35. He went on to say a little later in the same speech:

“The amendment will protect students from exploitation within these relationships of authority and support all students to learn in a safe environment. The amendment will not expand the scope of the offence to school workers who do not have students under their authority or care.”

Subjective case

36. The offender gave evidence at the sentence hearing and there is a volume of written material tendered in the case for the offender. I will go initially to the evidence given by the offender.

37. The offender said that he was 42 and understood that the victim was under his special care. He had a number of people in court supporting him including his mother who had travelled some distance from the south coast of New South Wales.

38. He maintained that he had told the truth to Dr Katie Seidler, the author of the psychological reports. He agreed with both reports.

39. The evidence continued that his ex-wife had been supportive and he cannot believe how supportive she has been. He said that he had pushed her away a little bit. It was at about this point in his evidence that I took him to para 61 of the first report, which reads as follows:

“Taking into account the information available to me, it is my opinion that within the context of long standing marital difficulties as a function of his poor affective communication and coping skills, Mr Gale’s intimacy needs were not being met as he became increasingly distant and disconnected from his wife, which also brought about the end pf the sexual relationship between the pair. This left him vulnerable to having an affair, which Mr Gale engaged in with the victim, who treated him in a way that made Mr Gale feel important and needed and which ultimately, he sexualised within the content of developing an emotional attachment to the victim”.

40. I had received the material relied on in advance and had read the reports. I initially took the view that the offender may well have been blaming his wife for him having the inappropriate relationship with the victim. In evidence however the offender satisfied me in his evidence that he was not blaming his wife.

41. The evidence continued to the effect that he now realised how inappropriate his conduct had been and he accepted that the conduct constituted a substantial breach of trust. He said that he could not believe that he had put the victim and himself though these events.

42. Counsel for the offender took the offender to the contents of paragraph 39 of the report in which it is stated at p 10 of the report, “However, Mr Gale disclosed moderate to strong attraction to females from post-puberty, which in the content of his offending is obviously concerning…” This is also referred to a little later at paragraph 74 of the report. The offender maintained in effect that he did not understand or at least did not quickly understand the questions that were being put to him by the author of the report. I understood his evidence to be that he does not have that interest to the extent that the author of the report would indicate.

43. The evidence of the offender continued to the effect that he is now divorced and he has three children aged 15, 13 and 12. They know about the offence and the sentence proceedings. He accepts that he will never again work as a teacher. It was this issue that led to a dispute between the parties as to weight to be given to that factor.

44. Further, the offender has consulted his general practitioner who referred him Ms Lana McAlister a treating psychologist. A report from Ms McAlister is at tab 4 of Exhibit 1, the defence tender bundle. A treatment plan, which is detailed within the report, has been prepared. My note and memory is to the effect that he now has a deeper understanding of the inappropriateness of his offending.

45. Under cross-examination the offender conceded that as a teacher he frequently gave information to students about inappropriate relationships. He well knew the consequences of the relationship with the victim if it was discovered. The subject PDHPE had a sex education component. He was also cross-examined on those parts of the facts relating to him dropping off or picking up the victim from near as opposed to at her home. The questioning was directed at the offender being well aware that the conduct in which he was engaging was inappropriate.

40. From the evidence of the offender and the manner in which he gave evidence I am more than satisfied on balance that the offender is remorseful. There are expressions of remorse contained within the written material. I note the Crown did not oppose a finding that the offender was remorseful.

41. I turn now to Dr Seidler’s reports. The offender had a good and stable upbringing although I infer from the report that his parents may have been somewhat emotionally distant. Be that as it may the offender enjoys the support of his family noting that his mother travelled some distance to be at court.

42. At paragraph 17 of the report Dr Seidler recounts that a number of people close to the offender including his paternal grandmother died when he was 15. Positive emotional coping was not modelled by his family and since he has “stuffed his feelings and ignored them”.

43. The report then goes on to the educational and vocational history of the offender. He enjoyed school, particularly sports. He achieved quite well academically. He obtained his teaching qualifications in Social Science in Recreation and Human Movement through Charles Sturt University. He has not undertaken any formal studies since leaving university.

44. In respect of employment the offender did unskilled labouring and gardening type work when he was a student. He taught at four different schools before being placed on “alternate duties” as a result of being charged with the offences for which he appears for sentence. He has since been terminated by the Department of Education.

45. The report then goes into medical history. The offender sustained some injuries in the course of playing sport, including one serious incident which resulted in short term memory problems.

46. The offender commenced using alcohol at the age of 16 years and engaged in binge drinking in his late teens and young adult years. He developed a pattern of daily alcohol use, which it seems he continues to the present. He did identify his alcohol use as being “problematic for health reasons”.

47. The author of the report goes on to record that the offender reported that he has been involved in two serious intimate relationships, the second of which was with his wife. He misses his wife and is able to reflect on some of the difficulties in the relationship. He had difficulties developing deep intimacy. The sexual relationship with his wife ceased completely in the years leading to the offending.

48. The offender reported to the author of the report that since being charged with the offences for which he appears for sentence he has been feeling high levels of anxiety. Given that the offending has led to the loss of his employment as a teacher and appearing for sentence the feelings of anxiety are hardly surprising.

49. At paragraph 48 of the report Dr Seidler says that the offender is not presently talking to anyone about his experiences or seeking therapeutic support. That report is dated 20 January 2020 but the report of Ms McAlister is dated 26 February 2020. It seems that the offender did something about seeking such support within weeks of being interviewed by Dr Seidler.

50. Dr Seidler observes at para 59 that the offender appears to function well interpersonally and he has had long term relationships. However she goes on to say that he has struggled with intimate relationships as a result of his difficulties identifying, communicating about and coping with negative and challenging emotions.

51. The report of Dr Seidler then addresses the risk of re-offending. After dealing at considerable length with the risk factors, Static and Historical risk factors, dynamic risk factors and protective factors at paragraph 80 of her report Dr Seidler opines that taking into account the various risk and protective factors it was her assessment that the offender poses an “overall low risk of sexual recidivism”. She goes on to observe, “Overall I consider Mr Gale a prosocial individual, whose sexual offending behaviour occurred within a rather unique set of circumstances and I am of the opinion that his risk can be well managed going forward”. At paragraph 82 Dr Seidler “determined Mr Gale to pose a low risk of sexual recidivism”. In a supplementary report (tab 2 of exhibit 1) Dr Seidler indicates that the fact of the drink driving conviction does not alter her opinion as to the likelihood of Mr Gale re-offending.

52. On the issue of the risk of re-offending I note that the report of the Community Corrections Departmental psychologist that it annexed to the Sentence Assessment Report (SAR) indicates that the offender is at a below average risk of re-offending. The author of the SAR opines that the offender is at a low risk of re-offending.

53. In all of the circumstances noting the offender’s age, lack of record and the opinions expressed in the reports to which I have just referred I am prepared to find on balance that the offender is unlikely to reoffend.

54. Dr Seidler recommends that the offender would benefit from psychological treatment that is designed to assist him in understanding the antecedents to his offending, long standing emotional awareness, communication and coping difficulties as well as assisting him in coming to terms with the chances in his life since offending. She doubts that given his low risk of reoffending whether appropriate programmes would be available in a gaol. She considers that the offender would likely be compliant with any court order.

55. The offender has consulted Ms Lana McAlister, clinical psychologist and is continuing to consult her. A treatment plan has been developed. The offender has also obtained employment as a labourer/operator in a vegetation management team. I find on balance that the offender has good prospects of rehabilitation.

56. There are three testimonial references tendered in support of the offender at tabs 6, 7 and 8 of the defence tender bundle, exhibit 1. One is from the Relieving Head Teacher of Teaching and Learning, PDHPE Teacher and Careers Advisor at the High School where the offender met the victim. The offender is described as an intelligent, reliable and hard-working man who is always willing to help others. He is also described as a dedicated teacher. She also speaks of the remorse that the offender has expressed for his actions.

57. The principal of that High School also provided a reference. He too speaks well of the offender as a highly regarded teacher. The offender took a significant welfare role with a terminally ill student in 2009-2010. To the principal’s observations the offender always conducted himself in a professional manner around students. This illustrates why good character is of less weight than in other circumstances. The offender has also expressed remorse for his offending to the principal.

58. The remaining referee is from a neighbour who has known the offender socially for about four years. Two of her three children have significant issues. She too speaks of the remorse expressed by the offender. She and her family see the offender regularly on a social basis. The offender tutored her daughter and she was never concerned about the offender’s conduct. This neighbour speaks very highly of the offender as a friend.

Extra curial punishment

65. Ms Alderton on behalf of the offender submits that the offender’s employment with the Department of Education has been terminated and that he will never again work in his chosen profession. Further the offender is permanently precluded from obtaining a (positive) Working with Children check. The submissions continue that “loss of employment in which the offender was qualified and engaged as a result of the commission of the offences is a matter the Court may properly take into account as extra curial punishment”. The footnote refers to the decisions of R v KNL [2005] NSWWCCA 260, R v Daetz; R v Wilson [2003] NSWCCA 216 at [61][62] and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [32].

66. At paragraph [33] and continuing James J (Tobias JA; Hulme J agreeing) in Daetz reviewed a considerable number of authorities. At [61] his Honour said:

“In the fairly recent decision of the High Court in Ryan v The Queen (2001) 206 CLR 267, an appeal against sentence by a person who had been sentenced for a number of sexual offences committed against boys and who had been a catholic priest at the time of committing the offences, there was a difference of opinion between Kirby J and Callinan J, on the one hand, and McHugh J, on the other hand, about whether public opprobrium which an offender has suffered and will suffer because of his crime would entitle the offender to a lesser sentence. Kirby J at par 123 and Callinan J at par 177 were of the opinion that public opprobrium could properly be taken into account. McHugh J at pars 52-55 of his judgment said that he was not convinced that public opprobrium should be taken into account but the reasons his Honour advanced for not being so convinced related specifically to public opprobrium. His Honour did not doubt that matters such as loss of employment and loss of financial benefits can properly be taken into account in sentencing an offender. At par 54 of his judgment his Honour said:-

‘It is legitimate, for example, to take into account that the conviction will result in the offender losing his or her employment or profession or that he or she will forfeit benefits such as superannuation.’”

67. In Parente the Court (Macfarlan JA, Hoeben CJ at CL, Leeming JA, Johnson & RA Hulme JJ) said at [32]:

“There is no doubt that the applicant's likely loss of the privilege of pursuing a promising career in the legal profession was a relevant matter to be taken into account in the assessment of sentence: see, for example, Oudomvilay v R [2006] NSWCCA 275 at [19]-[20]; Kenny v R [2010] NSWCCA 6 at [47]-[49]; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [95]-[97]; Michael v R [2014] NSWCCA 2 at [149]-[154]; Kearsley v R [2017] NSWCCA 28 at [13] (Macfarlan JA) and [76]-[80] (Harrison J).”

68. The Crown in oral submissions, apparently relying on the electronic version of the Sentencing Bench Book using lap top computer, submitted at the sentence hearing and referring to a number of decisions, that given the nature of the offending and the fact that the loss of employment is a natural and expected consequence of the offending the loss of the offender’s employment the court should give little or no weight to the issue of extra-curial punishment. It was then necessary for the matter to be adjourned in order that further submissions could be received from both parties on this issue. The time has more than come for the rule of practice that if an unreported decision is to be relied upon a copy should be made available to the court and to the other party to be enforced or at least the court to be furnished with a list of authorities relied upon.

69. In summary, Ms Alderton submits in reply that the loss of employment as opposed a loss of a profession does not constitute extra-curial punishment; it is legitimate to treat as extra-curial punishment that flow directly from the offence even where they are protective and not punitive in nature; specifically the loss of a profession such as a teacher, solicitor or chartered accountant may be taken into account on sentence as extra curial punishment; that the weight and effect of such extra-curial punishment will be reduced where the offender must have known their offending would bring their career to an end; and that even where the loss of profession even where it is an inevitable, ordinary or natural consequence of conviction still has relevance to the sentencing exercise.

70. One of the authorities to which Ms Alderton refers is Einfield v R (2010) 200 A Crim R 1. Basten JA (RS Hulme & Latham JJ agreeing (with additional comments), save for the disposition of the appeal on the issue of the condition of the appellant said at [86]:

The phrase "extra-curial punishment" appears to have two limbs, neither of which can be described with precision. That the punishment is "extra-curial" means that it is imposed otherwise than by the sentencing court. It would appear not, for example, to include consideration of the conditions of imprisonment and the impact of imprisonment on the particular offender. It is less clear whether it includes legal consequences of a kind which flow directly from the conviction or the sentence, such as disqualification from holding an office, remaining in an occupation or holding a licence. The concept of "punishment" has been treated with less rigour, suggesting that the phrase has been used on occasion in a manner which extends beyond its proper reach.

71. His Honour went on to say at [88]-[89]:

The phrase has, however, been used in an expanded sense as appears from the judgment of Whealy J in R v Rivkin [2003] NSWSC 447; 198 ALR 400; 45 ACSR 366 at [54], albeit expressed in cautious terms as to the use of the phrase.

"I turn then to consider a number of circumstances which have been discussed in the submissions under the heading of extra-curial punishments. First, there is the undoubted disgrace and humiliation which must accompany the jury's verdict .... Secondly, there is the impact on his wife and family .... Thirdly, there is the loss of his previous good standing in the community and in his profession as a stockbroker. ... Fourthly, there is the unquantifiable but real economic impact the conviction may have upon his livelihood and business calling. Fifthly, there is the disqualification from managing a corporation which flows from the provisions of s 206B(1)(b)(i) of the Corporations Act 2001. Finally, there is the possibility that ASIC may take action in relation to the Security Dealer's Licence held by Mr Rivkin. Such action has the potential to result in the revocation of the offender's securities licence or the imposition of a banning order. While it is true that any action in relation to the Security Dealer's Licence might properly be regarded as protective in character, it is clear that an adverse outcome in any such proceedings would be a matter of real practical punishment so far as the offender is concerned. In my view, such matters may properly be taken into account in the sentencing process, notwithstanding that they derive from proceedings essentially protective in nature rather than penal."

89 These statements were not the subject of adverse comment on appeal: see Regina v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 at [411]-[412] (Mason P, Wood CJ at CL and Sully J). Nevertheless, the label "extra-curial punishment" seems inapposite in relation to all of these considerations, except the last. Nor is it desirable to address them all under the same heading. Some consideration must be given to the consequences of how particular matters are taken into account. Thus, loss of good standing in the community may readily give rise to an element of double counting, if the offender is also given favourable consideration for his or her prior good character. Taking account of the economic consequences (including loss of employment) which inevitably follow from imprisonment, may mean that those previously in employment will receive shorter sentences than those who were unemployed.

72. His Honour concluded at [95]:

On the authorities, it is legitimate to treat as extra-curial punishment, to be taken into account in mitigation of sentence, the withdrawal of the applicant's commission as Queen's Counsel and not merely the non-renewal of his practising certificate, but also the removal of his name from the roll of legal practitioners. On 18 November 2008 he wrote to the Attorney-General stating:

"I sincerely regret and am deeply ashamed of my serious offences and readily accept my conduct was entirely inconsistent with that expected of a barrister and Queen's Counsel. I am very sorry that in committing the offences I have tarnished the image of the legal profession and I acknowledge I can no longer practice law.

I will not oppose an application to strike my name from the roll of legal practitioners or the withdrawal of my commission as Queen's Counsel and will willingly take any steps needed to facilitate those consequences of my offences."

73. In Parente the offending did not have the very close association with the occupation as is the situation with the matter presently under consideration. Hoeben CJ at CL (Latham J agreeing, Beech-Jones J agreeing with additional comments, relating particularly to s 16A(2)(p) of the Crimes Act 1914 (Cth)) in R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 said at [92]:

“While I accept the relevance of the extra curial punishment likely to be suffered by the respondent as a mitigating factor, its effect is limited. As with insider trading cases, it must have been anticipated by the respondent that an inevitable consequence, if his offending were discovered and successfully prosecuted, would be that he would be struck off the role of chartered accountants as not being a fit and proper person to pursue that profession. This was a risk which the respondent chose to take when he facilitated the operation of the scheme for 7 years.”

74. Then there is the decision of FB v R; R v FB [2011] NSWCCA 217. In that matter there was an unsuccessful conviction appeal by the offender but a successful Crown appeal on sentence. The judgment relating to the Crown appeal on sentence commences at [128] of the judgment. The facts related to a conviction for an offence contrary to s 61J of the Crimes Act where the offender was the principal of a school attended by the victim.

75. In R v FB Whealy JA (Buddin & Harrison JJ agreeing) said at [155]-[156]:

“The two circumstances most beneficial to the offender were hardship in prison and the factor of extra curial punishment. As to the first, the only evidence before the sentencing judge was the abusive behaviour experienced by the respondent in prison and his concern that this would or might continue after he had been sentenced. There was no evidence, for example, to suggest that there would be imposed on the respondent any specific custodial situation that would reveal hardship out of the ordinary (R v Totten[2003] NSWCCA 207; 10 Crim LN 61 (1582); R v Durocher-Yvon [2003] NSWCCA 299; 10 Crim LN 78 (1610); R v Mostyn[2004] NSWCCA 97).

[156] As to extra curial punishment, it may be accepted that the respondent had lost altogether his career as a teacher by virtue of his commission of the offence. Once again, however, this consideration could not, in the circumstances, have possibly outweighed or effectively undermined the level of objective seriousness involved in the offence. The respondent must have known that his sexual pursuit of pupils in his care would sooner or later bring his professional career to an end.”

76. The offending in R v FB is more serious than the matter presently under consideration in that the offending in that matter related to a sexual act where the victim did not consent and there was a significantly greater maximum penalty and standard non-parole period. I do not perceive that as affecting the principle involved. Particularly apposite to the matter presently under consideration is the last sentence of [156] of the judgment of Whealy JA in that, “The respondent must have known that his sexual pursuit of pupils in his care would sooner or later bring his professional career to an end”.

77. Be that as it may I do not read what Whealy JA said in R v FB as an indication that the loss of employment is not a relevant consideration. Rather I read it as saying that in those circumstances it is of less weight.

78. The same applies to the decision in Zerafa: Where the offender took the risk of engaging in conduct that if discovered would inevitably lead to loss of employment the fact of that loss of employment does not achieve or attain the same weight it might in other circumstances.

79. The Crown Prosecutor in brief written submissions refers the court to the decisions of Einfeld v R (2010) 200 A Crim R 1 and Greenwood v R [2014] NSWCCA 64 at [35]-[36]. Hoeben CJ at CL (Bathurst CJ, Adams J agreeing) in Greenwood said at [35]-[36]:

“There is no substance in the applicant's submission that his Honour erred in failing to take into account by way of "extra curial punishment" the fact that the applicant had lost his job as a result of his conviction for this offence. Loss of employment, no matter what the employment, would be an inevitable consequence in almost every circumstance where a person was convicted of an offence of this kind.

[36] The difficulties with such an approach were identified by Basten JA in somewhat different circumstances when referring to the loss of a profession, in Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1 at [85] - [97] (RS Hulme and Latham JJ agreeing).

‘87 ... Nevertheless, the label "extra-curial punishment" seems inapposite in relation to all of these considerations ... Nor is it desirable to address them all under the same heading. Some consideration must be given to the consequences of how particular matters are taken into account. Thus, loss of good standing in the community may readily give rise to an element of double counting, if the offender is also given favourable consideration for his or her prior good character. Taking account of the economic consequences (including loss of employment) which inevitably follow from imprisonment, may mean that those previously in employment will receive shorter sentences than those who were unemployed.’"

80. The Crown submits that the loss of the offender’s teaching career while part of the subjective mix does not amount to extra-curial punishment. After a review of the authorities cited and extracted from above I disagree with the submission of the Crown in this regard. However, in the circumstances and nature of the offending and the respective positions of the offender and victim in the matter presently under consideration the weight I would give the issue of extra curial punishment would only be “limited” or “slight”. Certainly the impact of the issue of extra-curial punishment does not alter my ultimate conclusion in this matter on the issue of whether or not the threshold in s5 of the Crimes (Sentencing Procedure) Act is Crossed.

81. In dealing with the issue of extra curial punishment I have also re-read and considered the authorities of Whybrow v R [2008] NSWCCA 270, especially at [21]-[25] per Hislop J where his Honour comprehensively reviews a number of authorities and Alameddine v R [2006] NSWCCA 317.

Statistics and comparable cases

82. Ms Alderton with admirable thoroughness in the preparation of this matter has included the statistics kept by the Judicial Commission in the defence tender bundle, exhibit 1. As conceded by counsel those statistics have limited utility noting the set of statistics relating to the period before the “sentencing reforms” the sample is limited to six cases. Four of these received sentences of full time custody, one a suspended sentence (which is no longer available) and one section 9 bond. The sentences involving full time custody range from 12 months to 2 years and the non-parole periods range from 6 to 18 months.

83. The submissions include a reference to the decision where the sentencing disposition was s 9 bond, i.e. Ridley v R [2008] NSWCCA 299. The offending in that matter is different in that there was only one count. Blanch J (Bell JA (as her Honour then was), Hall J agreeing) set out the facts of the case at [3]-[4]. The conduct constituting the offence became illegal during a consensual relationship. At [10] his Honour said:

“…It is a most unusual circumstance that this conduct was made illegal partway through a consensual relationship…”

84. His Honour went on to observe that the appellant had served two months in custody before he was released on bail pending the appeal.  That was also 2008, some 12 years ago.

85. The statistics also include a set involving a sample of two where one offender received a Community Corrections Order and the other was sentenced to full time custody. Ms Alderton notes that the sentence where a CCO of 3 years was imposed was not subject to a Crown appeal. Nothing is known of the offending in that matter. The other matter to which Ms Alderton refers involves far more serious offending than the matter presently under consideration, noting that a sentence of 5 years was imposed.

86. I have read and considered the table and the statistics and the various matters referred to by counsel but I warn myself about the use of statistics conformably with such decisions as Brown v R [2014] NSWCCA 215 especially at [80]-[81] per Garling J and the observations of Bathurst CJ in SS v The Queen [2016] NSWCCA 197 at [62]-[73].

Other submissions

87. The Crown adopts the position that given the offending and the need for general deterrence the offending crosses the threshold set out within s 5 of the Crimes (Sentencing Procedure) Act, 1999. It is common ground between the parties that a sentence of imprisonment to be served by way of Intensive Correction Order is not available to the court in this matter because of the nature of the offending. It follows therefore that if I conclude that a sentence of imprisonment is the only appropriate sentence then it must be served by way of full time imprisonment.

88. Ms Alderton submits (MFI 1 on sentence) that the “manifold purpose of sentencing and appropriately condign punishment of the offender can be met by a sentence other than one of full time imprisonment”. She refers to the decision of R v Blackman & Walters [2001] NSWCCA 121, which was an unsuccessful Crown appeal against the imposition of a non full-time custodial sentence for an offence of armed robbery. Wood CJ at CL (Stein JA, Studdert J agreeing) said in that case at [43]-[45]:

“Although expressed in the context of a social security fraud case, the South Australian Full Court, in Kovacevic (2000) 111 A Crim R 131 at 139, reiterated that while general deterrence may loom large in determining an appropriate sentence, (as it certainly must in the case of an armed robbery) nevertheless:

‘ there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in’an appropriate case, there may be room for the exercise of mercy and leniency….’

[44]   The Full Court also cited (at 147) with approval the following passage from the judgment of King CJ in Yardley v Betts (1979) 22 SASR 108 at 112‑3:

"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm…’

[45]   This has particular relevance for the present case. His Honour was, in my view, entitled to find that the position of each respondent was wholly exceptional, and that each had achieved a remarkable level of rehabilitation. Additionally, as I have previously noted, it was only by reason of their admissions, that their guilt could ever have been established. Moreover, if they had been sentenced to full time custody, they would have been at considerable personal risk by reason of the assistance given, which would have made their detention arduous and limited their opportunity to participate in the kinds of rehabilitation programs that would have been appropriate for young offenders. There was every reason to suppose that to send them to gaol would have been more likely to turn them towards a criminal way of life, than to maintain the degree of rehabilitation which each had, of his own effort and initiative, achieved.”

89. That part of the judgment at [45] clearly sets out the other factors taken into account. It is also worthy of note that the Court of Criminal Appeal also determined that it was inappropriate for the sentences to have been suspended.

90. Ms Alderton as a secondary submission puts that if the court concludes that only a sentence of full time imprisonment is appropriate then the court should make a finding of special circumstances. I agree that if a sentence of imprisonment is imposed it would be entirely appropriate to make a finding of special circumstances. The factors justifying such a finding include the offender’s age, the fact that this is his first time in custody and given his age and background he would need some real assistance in reintegrating into the community. I did not understand the Crown to oppose a finding of special circumstances.

91. In oral submissions Ms Alderton put that the maximum penalty for the offences for which the offender appears for sentence is slightly less than that for larceny (s 117 of the Crimes Act) and Intimidation (s 13 Crimes (Domestic & Personal Violence) Act, 2007). That point is well made. The fact that the offender had lost his employment was emphasised. It was put and I agree with counsel that specific deterrence has no role to play in this sentencing exercise. However, I understood counsel to accept that general deterrence is a relevant factor for the court to consider.

92. It was put on behalf of the offender that the court would find on balance that he is remorseful, that he is unlikely to reoffend and that he has good prospects of rehabilitation. I have already made positive findings in favour of the offender on these issues.

93. Ms Alderton amplified her written submissions and put that the court could properly deal with the matter other than by the imposition of a sentence of full time custody.

94. The Crown’s oral submissions dealt with the issue of extra-curial punishment, an issue with which I have dealt at some length. I did not understand the Crown to oppose a finding that the offender was remorseful. The Crown emphasised the abuse of trust involved in the offending and the need for general deterrence.

General Remarks

95. I will need to give proper regard and effect to ss 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

96. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate.

97. Ultimately, after a great deal of consideration, which should be obvious from the length of these reasons, I am of the opinion - given the offending including the breach of trust and the need for general deterrence - that no other sentence other than imprisonment is appropriate.

98. It is my understanding that it is accepted by both parties that because of the effect of sections 67(1) and 67(2)(a)(ii) of the Crimes (Sentencing Procedure) Act, 1999 it is not possible for the offender to serve any sentence by way of intensive correction order. If the situation was different then I would be obliged to consider whether that was appropriate – see for e.g. EF v R [2015] NSWCCA 36 at [42] per Schmidt J. Where a particular sentencing option is not available the sentencing court does not automatically proceed to a lower or less serious sentencing option – see R v Tsokos unreported NSWCCA 16.6.1995 per RS Hulme J (Gleeson CJ, Powell JA agreeing).

99. Although there are only two offences I am of the opinion that it is appropriate to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. These reasons have been reduced to writing and a copy will be provided to the parties immediately after the pronouncement of sentence. As I am imposing an aggregate sentence it will be necessary to set out the sentences that would have been imposed had separate sentences been imposed.

100. In respect of the first charge I am of the opinion that the appropriate starting point is 18 months imprisonment from which is to be deducted 25% for the utilitarian value of the plea making a total sentence of 13 months imprisonment with some rounding down in favour of the offender. In respect of the second matter, taking into account the matters on the form 1 document the appropriate starting point is 1 year 9 months (21 months) from which is to be deducted 25% for the utilitarian value of the plea making a total sentence of 15 months with some rounding down in favour of the offender.

101. It would be appropriate for there to be some degree of partial accumulation between the sentences noting that there were separate occasions some time apart.

102. There is no pre-sentence custody and accordingly, the sentence and non-parole period will commence today.

Sentence

103. In respect of the matters to which the offender has pleaded guilty he is convicted.

104. The offender is sentenced to an aggregate sentence of 1 year 8 months (imprisonment) with a non-parole period of 12 months. The non-parole period will commence on 3 April 2020 and will expire on 2 April 2021. The period on parole of 8 months will commence on 3 April 2021 and will expire on 2 December 2021.

105. The non-parole period is 60% of the total sentence which reflects a substantial finding of special circumstances the reasons for which have been enunciated earlier in these reasons.

106. The offender is to be released to parole at the expiration of the non-parole period. Parole is to be conditioned that he obey all reasonable directions of the Department of Community Corrections.

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Amendments

03 April 2020 - Paragraph 80, added missing words.

Decision last updated: 03 April 2020