R v Hovell (a pseudonym)

[2021] NSWDC 326

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Hovell (a pseudonym) [2021] NSWDC 326

Hearing dates:

13 May 2021

Date of orders:

31 May 2021

Decision date:

31 May 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

See paragraphs [179] – [186] for sentence.

Catchwords:

Criminal law – sentence- Sexual relationship between student and teacher – sexual intercourse person 10 and under 16 under authority-historical sex offences - s25AA - delay - special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

AJB v R (2007) 169 A Crim R 32

Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518

Cahyadi v R [2007] NSWCCA 1; (2007)168 A Crim R 41

Carr v R [2020] NSW 214

Dawkins v R [2018] NSWCCA 278

FB v R; R v FB [2011] NSWCCA 2017

Hornhardt v R [2017] NSWCCA 186

Magnuson v R [2013] NSWCCA 50

Mill v The Queen (1988) 166 CLR 59

Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497

MPB v R [2013] NSWCCA 123

Muldrock v The Queen 244CLR 120

NLR v R [2011] NSWCCA 246

O’Brien v R [2013] NSWCCA 197

Postiglione v The Queen (1997) 189CLR 295

R v Cattell [2019] NSWCCA 297

R v CMB [2014] NSWCCA 5

R v DP [2019] NSWCCA 55

R v Mak (2006) 167 A Crim R 159

R v Mostyn [2004] NSWCCA 967

R v Pham [2015] HCA39

R v Todd (1982) 2NSWLR 51

R v Way (2004) 60 NSWLR 168

RWB v R (2010) 202 A Crim R 209

Ryan v The Queen (2001) 206 CLR 267

SW v R [2013] NSWCCA 255

Wakling v R [2016] NSWCCA 33

Wright v R [2008] NSWCCA 91

Yeung v R [2018] NSWCCA 52

Category:

Sentence

Parties:

Regina (Crown)
Hovell (Offender)

Representation:

Counsel:
Mr English (Offender)

Solicitors:
Ms Hanshaw (DPP)

File Number(s):

2020/00148976

Publication restriction:

Non-publication order in relation to the name of the complainant and the offender and any information that may identify them.

Judgment

1. In 1992 Mr Hovell was a mathematics teacher and year advisor at a high school in regional New South Wales. That year, Sophie (a pseudonym) commenced year 7. Mr Hovell was her roll call and mathematics teacher. She considered the offender as her favourite teacher and she his favourite student. An inappropriate sexual relationship commenced and continued from 1993 to 1996. It involved sexual intercourse.

2. The relationship ceased with the offender taking up a teaching position in another town and the victim attending boarding school.

3. In June 2015 the victim’s mother died and the victim began disclosing to various family members that she had a sexual relationship with the offender from the age of 13 to just prior to her 16th birthday.

4. The matter was reported to the Department of Education. The offender was still teaching. The police became involved. Telephone conversations between the offender and the victim were lawfully recorded by the police. During a telephone conversation on 30 April 2020 between the victim and the offender he acknowledged the relationship and apologised saying “You definitely mean a lot to me”.

5. The offender was arrested on 19 May 2020 and made full admissions that he had a sexual relationship with the victim and expressed remorse for his actions and stated that given his position as a teacher he should have known better.

6. He now appears for sentence for five offences of sexual intercourse with a child between 10 and 16 years who was under his authority, contrary to s 66C(2) of the Crimes Act; maximum penalty ten years (sequences 1 to 3; 6 to 7).

7. Two offences of sexual intercourse with a child between 10 and 16 contrary to s 66C(1) of the Crimes Act; maximum penalty eight years (sequences 11 and 12).

8. The maximum penalties are an important guide in the assessment of sentence. A judge should steer by them but not aim for them.

Value of Guilty Plea

9. It was agreed between the parties that the plea was at the earliest opportunity. He is entitled to a 25% discount. The indicative sentences will be reduced by 25% with the appropriate rounding down.

10. The plea is also a practical manifestation of remorse and contrition on his part. He had the option of denying the offences. There is no supportive independent evidence. A jury would have been given a single witness direction. He could have forced the victim into the witness box; he chose not to. She did not have to relive the past in front of a jury. I take the course adopted by him into account. The course adopted by him has spared the necessity of the victim to give evidence which would have been severely traumatic and hurtful.

Form 1 Offences

11. The offender also ask that I take into account on sentence pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 two offences listed in a Form 1, namely sequence 4 and 5, contrary to s 66C(2) of the Crimes Act. The maximum penalty is 10 years.

12. I note that having availed himself of this arrangement the offender has the benefit of not facing a separate punishment for the additional offences.

13. I have reviewed the principles enunciated in Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999, (No.1) of 2002 [2002] NSWCCA 518.

14. The Court is to impose a sentence for the totality of the Criminality before it, reflected in both the offence for which the offender is to be sentenced and the offences taken into account. This may mean that the sentence passed is greater than that which would have been appropriate for the principal offence standing alone. The fact that matters on a Form 1 are to be taken into account means that greater weight should be given to personal deterrence and retribution. As part of the instinctive synthesis approach to sentencing the Court takes the Form 1 matters into account as required by the Statute in determining the appropriate penalty for the offence for which the offender is convicted.

15. The Form 1 matters are referrable to sequence 3. Matters on the Form 1 do operate to increase the sentence that would otherwise be appropriate to sequence 3.

Section 25AA

16. Section 25AA of the Crimes (Sentencing Procedure) Act applies to these proceedings. I must sentence the offender in accordance with the sentencing patterns and practices that apply today, not at the time of the offence.

17. While I am required to comply with s 25AA I must take guidance from the maximum penalties applicable at the time of the offending (1993 to 1996). Section 25AA does not alter this fundamental common law principle. The correct approach to fixing a sentence compliant with s 25AA involves the following steps:

(a) Take into account the sentencing pattern which exists at the date of sentence where such pattern is able to be discerned.

18. In oral argument Ms Hanshaw, solicitor advocate for the ADPP, nor Mr English, counsel for the accused, were unable to advance or identify a discernible sentencing pattern.

19. In helpful written submissions from Ms Hanshaw, dated 11 May 2021, at [6] she submits that:

“...there are very limited number of cases for comparison purposes, noting the majority of cases of offences pursuant to these provisions of the Crimes Act were determined by Courts prior to enactment of s 25AA, and the guidepost for the current offences for consideration is vastly different to the guidepost existing for offences committed of recent times”.

20. The current maximum penalty for sequence 1 is 20 years as opposed to 10 years and sequences 2, 3, 6 and 7, 12 years, but the then maximum penalty for sequences 2 and 3 were ten years and sequences 6 and 7, eight years.

21. Mr English in his helpful written submissions submits at [8]:

“Given the lack of consistent maximum penalty in any applicable non-parole period the application to these offences of sentencing patterns and practices existing at the time of sentence may prove challenging”.

(b) Determine the facts as are now available to the Court. In this case there is an agreed facts document.

(c) Have regard to the maximum penalty enforced at the time as a guide to the range of punishment then available.

(d) Identify where the offence falls within the range of objective gravity of that offence.

(e) Take into account any relevant aggravating and mitigating factors identified in s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act. Those provisions have retrospective application, and apply to all offences no matter when committed.

(f) Fix or indicate the term of individual sentences and ultimately the total sentence.

(g) Determine whether special circumstances require that the relationship described by s 44 of the Crimes (Sentencing Procedure) Act be varied: MPB v R [2013] NSWCCA 123 at [34] - [35]; Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [66] - [71].

22. The offender has been sentenced in accordance with s 25AA(1) and I have had regard to the trauma of sexual abuse on the child in accordance with s 25AA(3). I have had no regard to patterns or practices of sentencing which may have operated at the time of the offending.

Victim Impact Statement

23. Sophie, (a pseudonym) bravely and eloquently delivered a victim impact statement before me on 13 May 2021. She had aspirations of being an Olympian, but her “life goals became blurred by feelings absorbed in what she viewed as a special relationship”. It has impacted on future relationships with a view “that secrets within a relationship were okay”. It affected her family relationships with disobedience as a teenager. She has a jaundiced and sceptical view of relationships between young and older people. Her experience stays forever.

24. However, she assures me that as a strong person she has grown into she has done everything to not let this define her as a person. It is a stoic attitude with pain. She has taken control of her life. She is able to see herself as a survivor, not as a victim.

25. The Court is mindful that “Child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives”: R v CMB [2014] NSWCCA 5 at [92].

26. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52].

27. Courts recognise long-term and serious harm, both physical and psychological, which premature sexual activity can do. I have had regard to the trauma of sexual abuse occasioned to Sophie in accordance with s 25AA(3) of the Crimes (Sentencing Procedure) Act.

The Facts

28. At the time of offending (1993 to 1996) the victim resided with her family at the family farm, located in regional New South Wales. The victim resided at the farm with her father, mother and her three sisters and brother.

29. The offender resided at the school’s teaching accommodation.

30. In 1992 the victim started at that school in year 7 at the age of 12. The offender was employed as a mathematics teacher and year advisor until 1996 when he moved to another town in regional New South Wales.

31. The victim met the offender in the first week of year 7 in 1992 during year 7 orientation week conducted by the offender. At the beginning of the school term in 1992 the offender was assigned as the victim’s roll call and mathematics teacher. The victim grew to consider the offender as her favourite teacher and the victim his favourite student.

32. In 1992 the offender owned a red speedboat that he would often use for water-skiing in the summer months at a nearby lake. On several of these occasions after school and on weekends the victim would accompany the offender and friends of the offender skiing.

33. In the summer of 1992 to 1993 the offender was introduced to the victim’s parents, and the offender became a good family friend.

34. Throughout year 8 the victim was involved in numerous school sporting activities which involved training after school. On several occasions when the victim’s parents were unable to attend to collect the victim the victim would go to the offender’s apartment. On one such occasion after their relationship had formed the victim was at the offender’s residence sitting on the couch when the offender noted “you look good sitting like that”. The victim was kneeling against the couch and the offender noted “that’s the sexiest look, you leaning on my couch”.

35. The offender’s compliments made the victim feel good and the victim believed that the offender really liked her.

Between 7 June 1993 and 30 June 1993

Sequence 1, s 66C(2) sexual intercourse person ten and under 16 under authority.

36. In around 1993 the victim invited the offender to the family farm and introduced the offender to the victim’s father and the rest of her family. It was on this occasion that the victim and the offender kissed for the first time. In June 1993 the victim was aged 13 and in year 8.

37. One day after school the victim was alone with the offender at the offender’s residence after school. The offender asked the victim whilst at the apartment “Did you want to come lay down on my bed?” The victim did not know what to do and the offender grabbed her hand and walked the victim into his bedroom where they both laid on the bed.

38. Whilst on the bed the offender touched the victim’s body softly, slowly running his hands over her arms, breasts and face and kissed the victim. The victim reciprocated by mirroring the offender and touching his body. The offender said to the victim “Don’t be stiff, don’t be nervous, I’ll look after you, you’ll like it but don’t be stiff, just relax”.

39. The offender undressed himself and removed the victim’s clothes until both the offender and the victim were completely unclothed on the bed. The offender said to the victim “I always perve on you when you have your bike pants on for sports at school”. The victim responded “Will it be okay?” And the offender said “There’s nothing to worry about”.

40. The offender touched the victim’s vagina with his hands, rubbing her clitoris and placed the victim’s hands on his penis. The offender’s penis was erect and he guided the victim’s hand up and down stating to the victim “It’s okay, it’s nice, keep going”. The offender got on top of the victim and inserted his penis into the victim’s vagina and had sexual intercourse with her for approximately 15 minutes until the offender ejaculated inside of the victim.

41. Following this the offender laid next to the victim, kissed her and said “Are you okay?” The victim responded “Yep”. The offender continued “How do you feel?” And the victim responded “Okay”.

42. The offender continued to kiss and hold the victim on the bed until the victim went to the bathroom. The victim then went to the lounge room where her and the offender sat on the lounge together. The offender was holding her hand while they were listening to music.

43. Approximately 30 minutes later the victim’s mother arrived at the offender’s apartment to pick the victim up and take her home. During this car ride the victim did not disclose to her mother what had occurred with the offender.

28 March 1994

Sequence 2, s 66C(2) - sexual intercourse person ten and under 16 under authority.

44. On 28 March 1994 the victim was 14 years old and her sister, S was celebrating her 11th birthday. The victim went to school and saw the offender in the morning as he was her roll call teacher. At lunch time that day the victim and the offender spoke and the offender informed the victim that he was returning home for Easter holidays but that he would be attending her family’s farm that night for the victim’s sister’s birthday dinner and he offered the victim a ride home. The victim accepted, wanting to see the offender before he went away, and called her mother from school to tell her that she would not be catching the bus home.

45. As the victim and the offender were driving along the road, the offender pulled into an old stock route on the left hand side of the road approximately 500 metres south of the farm. The offender drove for approximately 150 metres to a tree-line and parked his car.

46. The offender got out of the car and walked around to the victim in the passenger side of the vehicle. The victim got out of the car and the offender and the victim started kissing. The victim was rubbing the offender’s penis on the outside of his shorts and unbuckled his belt, unbuttoned his pants and unzipped the offender’s zip.

47. The victim pulled down the offender’s pants and began performing oral sex on the offender, whilst using her right hand to masturbate the offender. This occurred for approximately ten minutes before the offender ejaculated into the victim’s mouth. Following this the offender redid his pants and the victim and the offender continued on the drive to the family farm. Once at the farm the offender kissed the victim before driving with the victim down the driveway to the home.

48. That night the victim’s family and the offender celebrated the victim’s sister, S’s birthday. Throughout the night the offender would walk past the chair where the victim was sitting and brush the victim’s back, would occasionally hold her hand in secret.

49. After dinner the offender left the family farm and the victim did not see the offender until a week later.

2 June 1994

Sequence 3, s 66C(2) - sexual intercourse person ten and under 16 under authority.

50. On Thursday 2 June 1994 the offender was celebrating his 29th birthday and the victim and her sister arrived at school early for the morning roll call class to each wish the offender a happy birthday. At recess that day the victim and the offender were talking and the offender confirmed plans from the day before that the victim would meet the offender at his apartment during the school time lunch break that day. When the bell went for lunch the victim walked towards the school gates and saw the offender leaving the school premises in his car. The victim did not go with the offender in his car as this would have raised suspicion. When the victim was sure no teachers were present to witness her leave the school grounds she walked the short distance back to the offender’s apartment where the door was open and the offender was already inside.

51. When the victim went into the apartment the offender led her to his bedroom where the victim undressed herself and they each got into the offender’s bed. The offender got on top of the victim and entered his penis into the victim’s vagina and had sexual intercourse for approximately 15 minutes where the offender ejaculated onto the stomach of the victim. The victim got straight out of the bed following this and went to the bathroom to clean up.

Between 3 June 1994 and 4 June 1994

Sequence 4, s 66C(2) - sexual intercourse between person ten and under 16 under authority, Form 1.

52. The next day, on 3 June 1994, the offender was invited by the victim’s family to the family farm for a dinner to celebrate the offender’s birthday. At the conclusion of school that day the offender drove the victim and her sisters home and the family had dinner together. The offender was also staying the night at the farm as he was to help the victim’s father with work on the farm early next day.

53. Throughout the night the offender and the victim planned that the victim would come to where the offender was sleeping in the rumpus room of the property when everyone was asleep. At approximately 10.30 to 11pm the family went to bed and the victim waited for approximately 30 minutes before leaving her bedroom and going to the lounge room where the offender was sleeping on a swag on the floor.

54. The victim laid down next to the offender in the swag and the pair began kissing and the victim was rubbing her body on top of the offender. The offender removed his boxer shorts and the victim removed her underwear. The victim was rubbing the offender’s penis and the offender was rubbing the victim’s vagina. The victim was on top of the offender when she used her hand to place the offender’s penis in her vagina and the offender told the victim that he loved her. The sexual intercourse occurred for approximately 40 minutes until the offender ejaculated inside the victim.

Between 3 June 1994 and 4 June 1994

55. Sequence 5, s 66C(2) - sexual intercourse between person ten and under 16 under authority, Form 1.

55. Following this the victim performed oral sex on the offender for a short period. The victim asked the offender “Did you enjoy it?” and the offender responded “Yes”. The victim believed that the offender was her boyfriend at this time and as she was leaving the offender said “I love you” and replied “I love you too”. The victim only responded to this because it was the offender’s birthday and would never reply when the offender had said it previously as she felt uncomfortable.

56. The victim returned to her room and did not see the offender until the next afternoon as the offender was helping the victim’s father around the farm.

Between 4 June 1994 and 20 June 1994

Sequence 6, s 66C(2) - sexual intercourse person ten and under 16 under authority.

58. In 1994 when the victim was 14 years old the victim travelled to a nearby town in New South Wales, with the offender in the offender’s red Holden Commodore vehicle which was due to be evaluated prior to trade-in that Saturday morning with a local car dealership.

59. The offender picked the victim up from the family farm and drove with the victim to the town, holding hands for a period of the trip. The offender dropped the car to the car dealer and the pair went to several different shops with the victim purchasing various clothing items.

60. The offender and the victim collected the offender’s vehicle at approximately 12.30pm to 1pm and began the trip home, when the offender drove the car off the road into a cemetery and parked the car. The offender and the victim got into the backseat of the vehicle and got undressed. The offender touched the victim’s vagina and the victim touched the offender’s penis. The offender was on top of the victim and he was touching and kissing her. The offender inserted his penis into the victim’s vagina and had sexual intercourse with her for approximately 20 minutes until the offender ejaculated onto the victim’s stomach. The victim and the offender laid in the backseat of the car for approximately five minutes before the victim got out of the car.

61. Following this the offender and the victim returned to family farm where the victim’s mother, sisters and brother were and the victim showed them her new clothes she had purchased.

Between 16 June 1994 and 23 December 1994

Sequence 7, s66C(2) - sexual intercourse person ten and under 16 under authority.

62. In 1994 when the victim was 14 years old the victim travelled to the same town in New South Wales as they had previously been to with the offender as the offender was picking up his new car from the car dealership, which was a dark blue Holden Commodore. The offender picked the victim up from the family farm and drove the victim to the town. On the drive back from home, the offender pulled off the road to the left hand side to an area where there were lots of trees. The offender drove far enough down the track so that they could not be seen and parked the car. Both the offender and the victim got out of the car and embraced and started kissing one another. The offender was touching the victim all over her body and the victim began touching his penis. The offender and the victim got into the back of the car and the victim was on top of the offender when they had sexual intercourse with one another.

63. Following this the victim and the offender laid together for approximately five minutes and the offender told the victim that he loved her. The victim said “I love you” back and they each got dressed and the offender drove the victim back to the farm.

64. When they arrived the offender kissed the victim in the car before heading inside. The offender showed the new vehicle to the victim’s family and the offender stayed and had dinner with the victim’s family before leaving. The offender kissed the victim and they each told one another that they loved each other.

1 January 1996

Sequence 11, s 66C(1) - sexual intercourse with person 14 or over and under 16.

65. On 1 January 1996 the offender visited the victim’s family farm to assist the victim’s father with some farm work. The offender stayed for dinner and invited the victim’s family to go water-skiing the following day. The victim asked her parents if she could go with the offender to his house and spend the rest of the afternoon. The victim’s mother initially said “No” but then changed her mind and allowed the victim return to the offender’s apartment for the afternoon.

66. When the offender and the victim arrived at the offender’s apartment both the offender and the victim sat on the lounge in the lounge room and turned the television on to watch cricket where Australia required four runs off the last ball to win the match. Following Australia’s win, the victim felt special that she was at the offender’s house with the offender being able to share in this moment with him.

67. They listened to music and laid on the lounge with one another, kissing and touching one another. The offender got off the lounge and led the victim to the bedroom where the offender and the victim undressed and got into bed. The offender and the victim continued to kiss and touch one another before the offender licked the victim on her vagina and had sexual intercourse with her. The victim was collected by her mother later that night and returned to the family farm.

Between 2 January 1996 and 22 January 1996

Sequence 12, s 66C(1) - sexual intercourse with person 14 or over and under 16 years.

68. The victim and the offender had sexual intercourse one more time prior to the victim’s 16th birthday on 22 January 1996. The offender attended the family property and picked the victim up in his car and the pair drove through the farm to a paddock on the other side of the road. A short time later the offender and the victim got into the backseat of the car and penile/vaginal intercourse took place. Afterwards, the offender and the victim discussed how this was going to be their last time together given their imminent change of circumstances. The offender was moving to take up a teaching position in another town while the victim was to attend boarding school elsewhere.

69. Both became teary and emotional during this discussion. After about five minutes the offender and the victim got out of the car and the victim cleaned herself up with tissues. Both the offender and the victim then put their clothes back on and the offender drove slowly back to near where he had picked the victim up from.

70. In June 2015 the victim’s mother passed away and the victim began disclosing to various family members that she had had a sexual relationship with the offender from age 13 to just prior to her 16th birthday.

71. On 31 July 2017 the matter was reported to the Department of Education Employee Performance and Conduct Directorate, with the matter being reported to the New South Wales police shortly after.

72. On 3 February 2020 police applied for and were granted a surveillance device warrant in respect of recording conversations between the offender and the victim. On 24 February 2020 the victim was recorded having a conversation with the offender in which the offender disclosed that he kept a photo of the victim skiing located on his notice board.

73. Following this conversation the offender sent the victim a MMS message of four photos located on a pin board, one depicting the victim skiing behind the offender’s boat.

74. On 20 April 2020 a telephone call between the victim and the offender was lawfully recorded by New South Wales police. During the conversation the victim asked the offender, “Why you pick me, all those years back at school?” and the offender replied, “Oh I don’t know, we just connected, just interested in football and stuff, I don’t know”.

75. The offender stated that he got on well with the victim and was close to the victim’s family.

76. On 30 April 2020 a telephone call between the victim and the offender was lawfully recorded by New South Wales police. During the conversation the offender acknowledged the relationship with the victim and apologised to the victim stating that “You definitely mean a lot to me”.

77. On 18 May 2020 police applied for and were granted a search warrant to search the workspace of the offender at the High School where the offender was employed as the head mathematics teacher.

78. On 19 May 2020 police attended to the Local Area Command, observed the offender in a vehicle and pulled over the vehicle for the purpose of speaking with the offender. The offender exited the vehicle and was informed by police that he was under arrest in relation to these matters. The offender was conveyed to the local Police Station where he participated in an electronically recorded interview with police.

79. During the interview with police the offender confirmed that he knew the victim and that he had formed a relationship with her and her family when he was her year advisor in year 7 at school. The offender accepted that he had had a sexual relationship with the victim during the period of 1993 to 1996 and expressed remorse for his actions and stated that given his position as a teacher he should have known better.

80. Later that day the search warrant was executed by police at the offender’s workspace at the High School and various items were seized as part of the police investigation.

Objective Seriousness

81. I am indebted to Ms Hanshaw, solicitor advocate for the DPP, and Mr English for their comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters raised but I have considered them in coming to my determination as to the appropriate sentence.

82. No standard non-parole period attaches to any of the offences so therefore s 54A(2) of the Crimes (Sentencing Procedure) Act does not have operation. That section speaks of the middle range of seriousness.

83. The assessment of objective seriousness is an evaluative process. The appointment of objective seriousness referable to a notional point on a spectrum of culpability (although convenient as a shorthand descriptor) is not a necessary component of the sentencing task, and to express objective seriousness in that way is rarely definitive of that part of the sentencing exercise and it requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending, or the culpability of the offender: Yeung v R [2018] NSWCCA 52 at [19] - [30]; R v DP [2019] NSWCCA 55 at [42].

84. In assessing the objective seriousness I take into account the following factors in relation to each offence individually:

1. The form of conduct or intercourse (not to be regarded as the sole consideration);

2. The degree of violence, if any;

3. The affliction of any physical hurt;

4. Any circumstances of humiliation;

5. The duration of the offence;

6. The age difference between the offender and the victim;

7. The inequality of the relationship (if any existed) between the offender and the victim.

85. The offender was her teacher, she was his pupil, sequences 1, 2, 3, 6 and 7 aver under authority and one must be careful not to double count the position of teacher/student in those counts as breach of authority is an element of those offences and cannot be taken into account as an aggravating feature on sentence for those matters.

86. The offender met the victim when he was 26 or 27 and she was 12. The Crown submits that there is an element of grooming that predates the offences and continued through each of the offences. The Crown points to invitations to water-skiing, the introduction to her family and he becoming friends with her parents. The Crown further submits that he paid her compliments to make her feel good, opening the way for sexually inappropriate behaviour on his part.

87. Mr English points to the agreed statement of facts at para [9] which says “The victim grew to consider the offender as her favourite teacher and the victim his favourite student”. He says that that sentence is to be read through her eyes and not the eyes of the offender. It is indicative of her state of mind and not that of the offender. There is some merit to this submission.

88. Mr English submits that the offending can be characterised as an improper but genuine relationship between the offender and the victim. He further submits that there was mutual willingness.

89. The facts disclose that both were teary and emotional when they discussed their last encounter, he taking up a teaching position and she going to boarding school. Such a reaction is suggestive of an improper but both believing a genuine relationship that involved mutual willingness.

90. In para 33 while he had sex with her the offender expressed his love for her, although he expressed his love for her on more than one occasion.

91. He knew what he was doing was wrong. A clear example of this is the facts for sequence 3. Plans were made to meet at his apartment during the lunch break. She walked and he drove his car. This was done to avoid suspicion.

92. Mr English submits that the conduct falls comfortably below the midrange of objective seriousness. Ms Hanshaw submits that the offending falls within the midrange. She submits that sequence 7 is slightly lower on the scale than that which the preceding offences fall. She submits that sequence 11 falls slightly below the midrange and sequence 12 falls below the midrange.

93. In making those submissions she highlights the age differential, position of trust, duration of sexual activity, the nature of the sexual activity (fellatio, penile/vaginal intercourse), ejaculation inside and outside the vagina.

94. While the victim was a willing participant, the offender acknowledges that it was he who introduced her to sexual activity. The sexual intercourse involved skin to skin contact and was unprotected.

95. In the context of offences against s 66C(2) of the Crimes Act, whether a victim was a willing participant, notwithstanding age, is a relevant consideration to the level of objective seriousness: Wakling v R [2016] NSWCCA 33 at [47]; Dawkins v R [2018] NSWCCA 278 at [34].

96. The offending was serious. Sequence 1 was more serious than the others. It was he who introduced her to sexual activity and he ejaculated inside her. Sequence 2 is less serious, involved fellatio with ejaculation in the mouth. Sequences 3 and 5 involved penile/vaginal intercourse with ejaculation on the stomach; they are less serious than sequence 1. However, sequence 3 has the Form 1 attached to it. The Crown concedes that sequence 7 where she sat on top of him and they engaged in penile/vaginal intercourse is less serious than the other sequences; I accept that analysis. Sequences 11 and 12 have lower statutory maximums involving penile/vaginal intercourse, they are less serious than sequence 1.

97. If I was to assess the offending on a continuum I accept Mr English’s submissions.

98. The maximum penalties are a measure of how serious the offences are viewed by parliament and the community. They carry with them implicit instructions to Courts that harsh, or retributive sentences with a focus on both specific and general deterrence are required: Ryan v The Queen (2001) 206 CLR 267 at [47].

99. Courts act with the ultimate aim of protecting children from exploitation. A proper sentence marks the Court’s view of the seriousness of the Crime and should let other wrongdoers know that retribution will fall upon them if they commit similar Crimes. The sentences must reflect the community’s abhorrence of and concern about adult sexual abuse of children. Parliaments do not enact maximum penalties as mere formalities. Chief weight is to be given to general deterrence and denunciation of the offender’s conduct.

100. In relation to specific deterrence, Mr English submits that that concept is substantially lessened by reason of the offender’s demonstrated rehabilitation and his contribution towards his community in the 25 year period post the commission of the offences, and the demonstrations of significant remorse. I accept that submission.

Subjective Features

101. The offender has a strong subjective case. He was 28 years of age at the time the offending began, he is now 55. He has worked as a teacher up to the date of charging. He has raised a family and has been an active member of his community with basketball, touch football, swimming and the local jockey club. He held long-term roles as president of basketball and touch football competitions. Both have been rescinded as a consequence of the offending.

102. The testimonials tendered on his behalf are impressive. He has an exceed PCA in 1989, which is irrelevant to the consideration of sentence. He is regarded as an excellent teacher who always sought the best outcome for his students. The offender’s arrest and charging was reported by the local media and became common knowledge amongst local community. Within the High School community, the offender’s wife (she a teacher) and daughter (she a pupil) have been the subject of cruel and demeaning taunts, both oral and in writing, about the offender’s Crime (see letter of Ms Hovell). He has lost community stature.

103. Following his arrest and charging the offender was diagnosed with situational anxiety and prescribed medication by his general practitioner. He and his wife are engaged in psychological counselling. It is the opinion of Mr Sheahan, forensic psychologist, that he has an adjustment disorder with mixed anxiety and depressed mood which is of recent times.

104. Since his arrest he has obtained employment for roughly one-third the equivalent of his teaching salary. That employment will terminate upon the imposition of sentence. He will never be able to return to teaching.

105. I have taken into account the extensive and impressive testimonials. I have also taken into account Mr Sheahan’s report. The offender presents with a strong subjective case.

Contrition/Remorse

106. On 13 April 2020 there was a telephone call between the victim and Mr Hovell which was lawfully recorded. During the conversation the offender acknowledged the relationship with the victim and apologised to the victim stating that “You definitely mean a lot to me”.

107. On 19 May 2020 the offender was arrested. He participated in an electronically recorded interview with police. Exhibit E is three pages of transcript of that interview.

The relevant parts are as follows, question 95:

“A. Um, ah this is going to ruin, I’ve already ruined one person’s life, this is going to ruin my family’s life and all my friends but I’m going to do that because it’s the right thing to do by Sophie who I care deeply for and had a sexual relationship with her during that period.”

Question 96:

“so there’s an admission of guilt”

Question 97:

“And I’m extremely concerned obviously she’s been hurt and an angry person and with that because I know that she’s - she rang me several years ago quite angry, but we had a conversation and so I know that her life has been damaged by my actions. I understand that and I regret that deeply. But the other part is that with this admission now I’ve greatly hurt my wife and my children”.

108. In answer to 102 he said this:

“I would like to know how she is, I’d like to know where her mindset is and if ...(not transcribable)... dealing with me and this process that helps her. I’m happy for her because we had a relationship, even though I was a teacher it was a romantic relationship. I’ve never ever forced myself upon her, or coerced her or whatever, it was a mutual boyfriend/girlfriend. My fuck - sorry, my stuff up was that she was a student and I think should have known better and should have acted better”.

109. He in that interview expressed genuine contrition or remorse for his actions. In his letter to the Court in part he says:

“Once I crossed the line regarding the legal professional and ethical boundary which exists between every student/teacher I felt shame and regret. I was the adult teacher and mentor who should not have broken the trust instilled in me by the Department of Education, the community, my colleagues, the victim's family and Sophie. I did and it has caused immense grief for Sophie and her family over the years. I am deeply sorry for this.

During my career as a teacher I have strived to educate young people when they make a poor decision as to how they could do things better and make amends. Nothing I can do will make it better, or make amends for my own actions towards Sophie. My behaviour is inexcusable. I broke the trust of a family who fed me, provided shelter and even cared for me when I was sick.

When I became a father in 2002 with the birth of my daughter A I realised how horrible my actions were to Sophie’s father W. A father will do anything to care for his family and Wayne had no idea of my despicable behaviour. W is a hardworking farmer who with his wife AN provided a loving and caring family environment, wanting only the best for their children. I’m sorry W that I’ve let you down...Sophie I am so sorry, if I could go back and stop myself from letting what occurred happen I would, but regrettably I can’t. You were and are a talented, intelligent, capable and wonderful person who should have had the world at your feet when you left school, instead your life journey has had many bumps and turns which I hold myself largely to blame.

Over the years I had prayed your life would be successful and full of love. However it became apparent to me in 2017 when you called me that this was not the case. I was shattered that your life had been damaged by me and so sorry for what I had done to you. I was helpless to change what had happened. I couldn’t provide support and help to you and I realised that one day I would be held accountable for my behaviour. I can only imagine the trauma and distress you have gone through with police in the investigation. I hope that you will find a better life ahead of you now that I have been brought to justice...I should have been man enough to walk away before the relationship developed. I did not take responsibility then and act as an adult.

When I was arrested I made the decision to do the right thing, accept responsibility, face the accusations and cooperate to be a man. I did this for two reasons. To limit further heartache on Sophie and her family and I could not live any longer with the guilt I felt. I could not pretend or lie. To my beautiful daughters I hope you see a man who did a horrible thing, took responsibility for it and accepted the sanctions imposed upon him.”

110. What is said by the offender is genuine expressions of remorse and contrition, not only to the victim but his family and the wider community. The letter was provided to the Director of Public Prosecutions to pass onto the victim and her family.

111. Mr Patrick Sheahan, forensic psychologist, in his report dated 30 March 2021 says:

“He seemed genuine...his discourse reflected themes of remorse, guilt and self-reproach…There is no compelling evidence of personality disorder with hallmarks of” - sorry…During the interview Mr Hovell fully acknowledged his offences and the adverse consequences that his actions have had on all involved...he also displayed having upheld the belief that he was in a relationship having convinced himself that his relationship - this relationship was consenting, not exploitive. He said that in the years since his offending he had often reflected on what he had done and regretted his actions, he had hoped that the complainant had gone on to live a good life, lessening his sense of guilt.”

112. This is a continuation of his genuine remorse and contrition.

Delay

113. The Crown in written submissions referred me to Carr v R [2020] NSW 214. Haesler SC DCJ at first instance said of delay the following:

“Here the offender ceased offending against his daughter and has not so far as the Court is aware committed any Crime since 2000. Sentencing for a stale Crime long after the committing of the offence is cause for a considerable measure of understanding and flexibility of approach”: R v Todd (1982) 2NSWLR 517 at 519; Mill v The Queen (1988) 166 CLR 59 at [14].

114. The substantial delay in bringing a matter before the Court in some cases may operate to the offender’s advantage by providing him with the opportunity to demonstrate his capacity for rehabilitation by not offending: AJB v R (2007) 169 A Crim R 32; Wright v R [2008] NSWCCA 91.

115. Offenders are entitled to have evaluated these matters in their favour. Any factors deriving out of their conduct during the period of delay which reflects to their advantage should be taken into account. This includes practical demonstrations of rehabilitation.

116. In R v Moon [2000] NSWCCA 534, Howie J noted that while there is no universal rule and delay should not be allowed to dictate a sentence that is not appropriate.

“It is the fact of imprisonment rather than the length of sentence which will be of the greatest significance to punish the offender and denounce his conduct at [81]”

117. I note as I have already indicated that s 25AA requires reconsideration of that particular passage, nevertheless it is a matter for the Court to consider.

118. Johnson J (with Harrison J and Hamill J agreeing) concluded at 65:

“The Applicant has not made good any of his grounds of appeal. The sentencing Judge’s careful and balanced sentencing remarks demonstrate the exercise of instinctive synthesis undertaken in this case, where all factors were taken into account in passing sentence.”

119. The Court was not referred to R v Cattell [2019] NSWCCA 297. In that case I referred to the same authorities as Haesler SC DCJ, however in referring to delay I used the expression “dominant role”. Price J (Hoeben Chief Judge at common law and Campbell J agreeing) at [142] said:

“...however to elevate considerations of fairness to the respondent to a ‘dominant role’ in the circumstances of this case is in my respectful opinion more than giving delay and rehabilitation undue weight but is an error of principle and is reviewable by this Court in accordance with the principles of House v The King. The purpose of sentencing, which include general deterrence; the recognition of serious harm to each of the victims; the accountability of the respondent; the denunciation of his conduct and adequate punishment for his Crimes, could not be regarded as being subordinate to delay and rehabilitation”.

120. At [135] Price J referred to Hornhardt v R [2017] NSWCCA 186 for the proposition that “in historical sexual assault cases a child sex offender does not necessarily benefit from an extensive delay and the revelation of offences”.

121. His Honour at [138] referred to the dicta of Whealy J in Moon v R [2000] NSWCCA 534; (2006) 117 A Crim R 497, in that:

“It is not uncommon where a very young or vulnerable person is abused by an older person that the complainant does not emerge until many years later. It is the very nature of the relationship that in many cases leads to this repression and inhibition”.

122. I requested and received written submissions from the parties on delay. Ms Hanshaw’s helpful submissions are dated 18 May 2021 and Mr English’s helpful submissions are dated 27 May 2021.

123. The Crown submits that it is appropriate for the Court to consider the steps taken towards rehabilitation following the period of offending and prior to sentence. She submits that this is relevant to the considerations of whether the Court can make a finding on balance that the offender is unlikely to reoffend and whether there are good prospects of rehabilitation, and to give any further weight to the delay, particularly in circumstances where the offender has been shown to positively benefit from delay (employment) would have the result of elevating it to a dominant matter in the proceedings and give undue weight as opposed to issues of general deterrence and denunciation.

124. She further submits that the offender’s statement to Patrick Sheahan, psychologist, that he “spent all these years waiting for the police to knock on the door” must be read in light of the fact that overall the opinion of Patrick Sheahan is that prior to his arrest the offender was not depressed, not anxious, rather was “pragmatic and optimistic in his orientation”. She submits that it is not open for the Court to make a finding, even on balance, that this offender has experienced any detriment on account of delay. There is much force to that submission.

125. She submits that it is open for the Court to give consideration to the fact of delay and steps towards rehabilitation that have occurred, however it cannot overwhelm the sentence proceedings, nor can it be allowed to take precedence over matters such as general deterrence, denunciation and recognition of harm. Such a submission accords with Cattell (supra).

126. Mr English on behalf of the offender submits by reference to s 25AA of the Crimes (Sentencing Procedure) Act that delay is a legitimate consideration to be taken into account when sentencing offenders for child sexual offences. However delay and the consequent factors of rehabilitation and the unlikelihood of reoffending cannot be given a dominant role over principally the need for general deterrence. To do so would be inconsistent with current sentencing patterns which must recognise the now understood trauma of sexual abuse on children: s 25AA(3).

127. This is consistent with Button J’s observations (with McClellan CJ at CL and Bellew J agreeing) in Magnuson v R [2013] NSWCCA 50 (which predated s 25AA of the Crimes (Sentencing Procedure) Act) at [62] that:

“…Even if the "reform to the offender" had been truly exemplary, general deterrence would still have had a significant role to play in sentencing an offender who was convicted of 25 sexual offences after three trials...”

In that case the offender committed his Crimes 25 years before the sentence was passed.

128. The offences against the victim were a course of conduct of discrete acts from 1993 to 1996. The offender was arrested on 19 May 2020, some 24 years after the final offence in time. A lengthy delay between the time of the offence was committed and the sentence imposed may be a mitigating factor where it is established that the offender suffered some detriment.

129. I am not satisfied that this offender has suffered a detriment. It is clear from Cattell that delay, even where positive steps towards rehabilitation have occurred, cannot be a dominant feature in the sentence process. Cattell was factually very different to this case. Cattell had been previously sentenced on three separate occasions for historical offences, however in Cattell at [140] Price J said:

“It is well settled that the Todd principle does not apply to a state of uncertainty experienced by an offender who remains silent and hopes that his offending remains undetected”.

130. That passage is apt to the circumstances of this case.

131. By reason of delay I am satisfied that the offender is unlikely to reoffend and has rehabilitated and has excellent future prospects insofar as rehabilitation is concerned. The delay has operated to the offender’s advantage by providing him with the opportunity to demonstrate his capacity for rehabilitation by not offending. In this case there is a practical demonstration of rehabilitation.

132. Delay is but one of many factors I take into account in arriving at an appropriate sentence. It does not form a dominant role in the sentencing matrix.

Good Character

133. Section 21A(5A) of the Crimes (Sentencing Procedure) Act provides:

“In determining the appropriate sentence for a child sexual offence the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the Court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.”

134. The Crown submits that the offender’s good character and reputation (he the teacher to the student) assisted the offender in the commission of the offences and therefore his good character cannot be taken into account in mitigation. The Crown submits that the prohibition of using good character in child sex offences is extended to historic offences prior to the enactment of subs (5A).

135. The Crown submit that good character can be taken into account pursuant to s 21A(g)(n), namely prospects of rehabilitation and assessment of likelihood of reoffending.

136. Mr English submits that in order for s 21A(5A) to apply the Court should make an express statement that it is satisfied that the offender’s good character and lack of previous convictions has been of assistance to the offender in the commission of the offence: NLR v R [2011] NSWCCA 246 at [31]. He submits that the evidence of the offender’s good character relates to the period after the commission of the offences and therefore a finding required to invoke s 21A(5A) is not open. He further submits that the evidence of good character relied on by the offender postdates the offending conduct and it must be said that the individual aspects of his character were of assistance to him - and it cannot be said that these individual aspects of his character were of assistance to him in the commission of the offences.

137. He points to the statutory construction where s 21A(3)(f) uses the words “was a person of good character” and s 21A(5A) “was of assistance to the offender in the commission of the offence”.

138. He says s 21A(3)(f) has application because the good character postdates the commission of the offences and relies upon the words “was of good character”.

139. Such a submission is consistent with what James J said in NRL (supra) at [25]. His Honour said:

“Section 21A(5A) of the Crimes (Sentencing Procedure) Act, which is referred to in this ground of appeal, is to be read with s 21A(3)(e) and (f) of the Act. Section 21A(3) provides that the mitigating factors are to be taken into account in determining the appropriate sentence for an offence include (e) the offender does not have any record (or any significant record) of previous convictions; and (f) the offender is of good character.”

140. I am not satisfied that the role of a teacher/student necessarily is one of good character assisting in the commission of the offences invoking the operation of s 21A(5A). A school teacher with prior convictions that did not disentitle him or her to be a teacher could still commit the offences due to the role of teacher/student. It does not follow that a teacher with an unblemished record, that that unblemished record assists in the commission of the offences.

Prospects of Rehabilitation

141. Mr Sheahan in his report does not offer a diagnosis of paedophilic disorder. He says:

“There is no compelling evidence of personality disorder with hallmarks of favourable personality adjustment. Notably there was no indications of antisocial personality disorder, the absence of which is a positive prognostic indicator”.

142. It is the opinion of Mr Sheahan that the offender would be in the below average risk category for sexual reoffending, when considered against actuarial factors.

143. Mr Sheahan says,

“On the basis of the available information Mr Hovell’s risk of sexually reoffending would be considered at the very lowest end of the risk spectrum”.

144. Mr Hovell has the support of his wife, children, siblings and the broader community. He has found employment after his lengthy teaching career was understandably terminated. It is hoped employment awaits him at the completion of his sentence.

145. There is a lengthy period between offending and sentence. It has operated to his advantage by providing him with the opportunity to demonstrate his capacity for rehabilitation by not offending. He has rehabilitated himself and he has excellent future prospects.

Hardship in Prison

146. Mr Sheahan, in his report says that it is:

“likely the offender would be managed under the special management area of protection which may reduce his amenity and scope for placement relative to inmates managed in the main prison population.”

147. The offender is currently prescribed benzodiazepine. Mr Sheahan says that the offender will be unable to obtain benzodiazepine in custody.

148. Mr English submits that protective custody can be taken into account in mitigation in the determination of sentence, or in the finding of special circumstances where there is evidence that the conditions of imprisonment will be more onerous. He cites RWB v R (2010) 202 A Crim R 209 at [192] - [195].

149. The Crown submits that there needs to be evidence of the onerous conditions and relies upon what was said by Howie J in R v Mostyn [2004] NSWCCA 967 at [179].

150. The opinion of Mr Sheahan that the offender’s placement in SMAP may reduce his amenity and scope for placement relative to inmates managed in the main prison population is not a sufficient evidentiary foundation (even on balance) to operate in mitigation of sentence. I do accept on balance that he will not have access to Benzodiazepine.

Special Circumstances

151. I find special circumstances due to the age of the offender and this being his first time in custody. The statutory ratio will be altered.

Analysis of the Cases

152. The Crown has referred to me Carr v R [2020] NSWCCA 214 and FB v R [2011] NSWCCA 217. Carr pleaded guilty to seven counts (s 61M(1) x 3; s 61O(1) x 2; s 66C(2); and s 66D x 2). Four matters were taken into account on a Form 1. The victim was Carr’s daughter. She was 11 or 12. Eleven events were particularised in the agreed facts. There was a late plea. The sentencing judge amongst other things took into account delay (sentencing for stale Crime calling for a considerable measure of understanding and flexibility), impact of imprisonment and s 25AA. Haesler SC DCJ imposed an aggregate sentence of eight years and six months with a non-parole period of five years and six months. On appeal the appellant asserted insufficient weight was given on sentence to various factors. There was no claim the sentence was manifestly excessive, no error was demonstrated and the appeal was dismissed.

153. The facts of Carr are very different to the present case. Here the victim was blinded by his position and engaged willingly. The discount for plea in this case is greater.

154. FB v R; R v FB [2011] NSWCCA 2017. SE was 14 at the time of the offence. She was under the authority of the appellant by reason of him being the headmaster of the school she was attending in 2006. The appellant pleaded not guilty and was found guilty in a judge alone trial. His conviction appeal was unsuccessful.

155. The victim was having family difficulties. Arrangements were made for her to stay from time to time with the appellant and his family. On one of the stays he gave her two tablets. He told her they were Panadol. She had a headache. She fell asleep dressed in her uniform. She woke up in her nightdress and the appellant on top of her having penile/vaginal sex. She screamed for help. He held her down by the arms and continued. She was a virgin.

156. The offence was contrary to s 61J(1); maximum penalty was 20 years imprisonment with a standard non-parole period of ten years. The sentencing judge imposed a sentence of six years and six months, with a non-parole period of four years. The Crown appealed and it was allowed. A sentence of ten years with a non-parole period of six years was imposed.

157. At [150] the Court referred to R v Way [2004] NSWCCA 131 and the relevance of the standard non-parole period had on application to having been found guilty after trial.

158. Judgment in FB was delivered on 30 September 2011. The High Court delivered judgment in Muldrock v The Queen 244 CLR 120 five days later (5 October 2011) holding that R v Way was incorrectly decided. The case is of no assistance. Different statutory maximums applied and the two stage sentencing process was engaged in contrary to the instinctive synthesis of sentencing. The victim was not a willing participant.

159. Mr English has referred me to Dawkins v The Queen [2018] NSWCCA 278; R v RD [2014] NSWCCA 103; and O’Brien v R [2013] NSWCCA 197.

160. In Dawkins v R the offender was sentenced for four counts of aggravated sexual intercourse with a person between the age of ten and 14 years, contrary to s 66C(2) of the Crimes Act. The victim was under the offender’s authority (s 66C(5)(d)), at the time the maximum penalty for the offence was 20 years with a standard non-parole period of nine years.

152. The 21 year old offender was a neighbour and a family friend and he had acted in the role of a babysitter for the 12 year old victim and her siblings in their home at the time of some of the offences.

153. The applicant had a very strong subjective case, being of prior good character, having good prospects of rehabilitation, having no Criminal record, showing remorse and being a low risk of reoffending. It was also relevant that the applicant was young and had a history of depression.

154. Upon resentence on appeal, after applying a 40% discount for assistance and a guilty plea, the offender was sentenced to an aggregate sentence of imprisonment of five years with a non-parole period of 2.5 years.

155. In R v RD the offender was sentenced for three offences against s 66C(1) of the Crimes Act. The maximum penalty for an offence under s 66C(1) was 16 years. The offender was aged between 18 and 21 at the time of the offences and the victim was between 12 and 13. The offender was best friends with the victim’s older brother and moved into the home of the victim. The offender was of below average intellect and came from a background of significant disadvantage.

156. On resentence the Court substituted the extraordinarily lenient sentence imposed by the District Court (total sentence of three years, with a non-parole period of 18 months) for an aggregate sentence of five and a half years with a non-parole period of two years and nine months.

157. In O’Brien v R the offender had been sentenced for four counts of unlawful sexual intercourse with a child of 14 years, contrary to s 66C(3). The maximum penalty is ten years and there was no standard non-parole period. The offender was between 23 and 24 years old and the victim was 14. The offender frequently visited the victim’s grandparents’ home and sometimes took the victim and her family spotlighting around which time the offences occurred. The offender’s conduct was deliberate, calculated and exploited the trust reposed in him by the victim and her family.

158. The sentencing judge had applied a discount of 10% for the plea of guilty and imposed an aggregate sentence of three years and seven months imprisonment.

159. Mr English in his submissions said that the non-parole period was two years, but having reviewed the Court of Criminal Appeal decision the non-parole period that was imposed by the sentencing judge was in fact two years and two months. On appeal the Court rejected the submission that the sentence was manifestly excessive.

160. The guidance offered by appellant courts is always welcome and patterns of past sentences, particularly the current pattern of sentencing for offences such as this, can help guide the penalty that I must impose and I am required to have regard to it.

161. But as Bell and Gageler JJ noted in R v Pham [2015] HCA 39 at [47]:

“...sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases”.

Sentence

171. Each count for sentence involved discrete acts of Criminality with some common features. Each of the sentences should be partially cumulative. The aggregation of all the sentences must be adjusted in an appropriate measure of the total Criminality involved: Postiglione v The Queen (1997) 189CLR 295 at 307 to 308 per McHugh J; Cahyadi v R [2007] NSWCCA 1; (2007)168 A Crim R 41.

172. It is recognised that Courts simply do not add one sentence upon the other. It is also recognised the severity of combined sentences should not, unless absolutely necessary, operate to destroy any prospects of rehabilitation and reforms.

173. The severity of sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of sentence: R v Mak (2006) 167 A Crim R 159.

174. Simply put, two years in gaol is a lot worse than one year in gaol; three years is significantly worse than one, however public confidence in the administration of justice requires that there be no suggestion there is some sort of discount for multiple offending.

175. The maximum penalties are a measure of how serious the offences are viewed by parliament and the community. They carry with them an implicit instruction to Courts that retribute of sentences with a focus on both specific and general deterrence are required. Here the focus is on general deterrence.

176. Retribution is the notion that reflects the community’s expectation offenders will suffer punishment. A Court sentencing an offender must take into account all relevant considerations. This means a direct correlation between the harm done and the time to be served is impossible. The victim of sexual offences should never equate or measure her injury with the punishment actually inflicted on the offender.

177. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the Court: R v Moon [2000] NSWCCA 534, Howie J at [81].

178. Instinctive synthesis is a method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a valued judgment as to what is the appropriate sentence, given all the factors of the case. Individualised justice is an important aspect of sentencing. Indicative sentences will reflect the 25% reduction required. The total sentence and the non-parole period will reflect all of the matters that I have discussed. The indicative sentences are as follows:

179. Sequence 1, penile/vaginal intercourse with ejaculation within the complainant. This in my view is the most serious of the sequences, it is the start of a completely inappropriate relationship. Two years and six months. But for the 25% discount the sentence would have been three years and six months.

180. Sequence 2, fellatio with ejaculation in the mouth. This is a serious offence but the least serious of the sequences. Seventeen months. But for the 25% discount the sentence would have been one year and 11 months.

181. Sequence 3, penile/vaginal intercourse with ejaculation on the stomach, accompanied with two offences on a Form 1. Two years and nine months. But for the 25% discount the sentence would have been three years and nine months.

182. Sequence 6, penile/vaginal intercourse, ejaculation on the stomach. Two years. But for the 25% discount the sentence would have been two years and nine months.

183. Sequence 7, the victim sat on top of the offender and they engaged in penile/vaginal intercourse. This sequence although serious is less serious than sequences 1, 3, and 6 which have the same statutory maximum. Nineteen months. But for the 25% discount the sentence would have been two years and two months.

184. Sequence 11, the statutory maximum is two years less than the previous sequences. The conduct is penile/vaginal intercourse. Sixteen months. But for the 25% discount the sentence would have been one year and 10 months.

185. Sequence 12, the statutory maximum is two years less than sequences 1, 2, 3, 6 and 7. The conduct involved penile/vaginal intercourse. Sixteen months. But for the 25% discount the sentence would have been one year and 10 months.

186. The commencement date of sentence will take into account the one day spent in police custody. The total aggregate sentence is six years, commencing on 30 May 2021, which will expire on 29 May 2027. I impose a non-parole period of three years. Mr Hovell will be eligible for parole on 29 May 2024.

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Amendments

20 July 2021 - Add: R v Cattell [2019] NSWCCA 297 to 'cases cited'

22 July 2021 - paragraph [101] - removed location.

18 August 2021 - Para 84: change 'complainant' to 'offender'

18 August 2021 - Correct spelling of: Cahyardi v R [2007] NSWCCA 1; (2007)168 A Crim R 41

Decision last updated: 18 August 2021