R v Manojlovic

[2020] NSWDC 221

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Manojlovic [2020] NSWDC 221
Hearing dates:	9 April 2020
Date of orders:	09 April 2020
Decision date:	09 April 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 3 years, 9 months with a non-parole period of 22 months: at [55].
Catchwords:	CRIME — Sexual offences — Aggravated sexual assault — Victim under authority CRIME — Sexual offences — Indecent assault — Circumstances of aggravation SENTENCING — Mitigating factors — Good character — Rehabilitation SENTENCING — Relevant factors on sentence — Establishing relevant matters — Factual basis for sentence — General principles — Multiple offences — Accumulation, concurrency and totality — Objective seriousness SENTENCING — Subjective considerations on sentence — Extra curial punishment — Mental illness Hardship
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	BP v R [2010] NSWCCA 159 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Imbornone v R [2017] NSWCCA 144 R v Blanco (1999) 106 A Crim R 303 R v Edwards (1996) 90 A Crim R 510 R v Olbrich (1999) 199 CLR 270 R v Qutami (2001) 127 A Crim R 369 Tiatoko v R [2020] NSWCCA 43 WLP v R [2014] NSWCCA 183
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Alexander Manojlovic (Offender)
Representation:	Ms N Keay (Crown Prosecutor)   Mr I Lloyd QC (Counsel for the Offender)
File Number(s):	2018/215178
Publication restriction:	Pursuant to section 578A of the Crimes Act 1900 a non-publication order applies to any matter that may identify the victim.

Judgment

1. Alexander Manojlovic, now 39 years of age, was found guilty by jury following a trial in February 2020, of two counts of indecent assault with a person under authority and three counts of sexual assault of a person under authority. The first two counts of indecent assault with a person under authority contrary to s 61M of the Crimes Act1900, carry a maximum penalty of seven years imprisonment with a standard non‑parole period of five years; counts 3, 5 and 7 on the indictment under s 61J(1) of the Crimes Act 1900, carry a maximum penalty of 20 years imprisonment with a standard non‑parole period of ten years.

2. The offender has been in custody since the day of the jury verdict on 10 February 2020, and it is common ground that a term of imprisonment should commence on that day. Mr Lloyd QC for the offender does not submit that any alternative to fulltime custody is appropriate.

3. It is necessary for me to take into account all the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 in carrying out the sentencing exercise.

4. The facts as outlined by the Crown as consistent with the jury's verdicts have not been the subject of any challenge by Mr Lloyd. They involve a Year 12 student, then aged 17, who attended Bowral High School. Mr Manojlovic was a casual teacher at Bowral High School commencing in 2013, and was still a teacher in 2017. They first met when he was a music teacher in 2013. The victim had a number of behavioural issues at school and she perceived him as being “cool” teacher who treated her differently from older teachers. She described him as a friend at the trial.

5. She would often sit in his year 12 English class in 2015 as she did not like to do sports. When she was in year 11 her contact with him involved one English lesson where he covered for another teacher. They also spoke about him separating from his wife and a new relationship. In December 2016 she sent him a follow request on Instagram, which he accepted.

6. In year 12 under a mentoring program, the victim nominated Mr Manojlovic to be one of her year 12 mentors, and he accepted that role. She would meet up with him whenever she could, and she would often sit in on classes and speak to him when he was free. On Friday 31 March 2017, she went to see him for a mentoring session as she was experiencing a difficult time with her boyfriend, and she vented about her issues and he said, "Well if things aren't nice at home you can come and watch the footy and have pizza with me".

7. Later that evening, after having an argument with her boyfriend, she went for a drive to clear her head and she communicated with the offender via Instagram, where she was venting about her relationship issues. He sent her a message asking if she could drive him home from Colo Vale, she agreed, and told him to call her when he was ready. He sent a message giving the address of his parent's home in Colo Vale and they were away for a few days.

8. When she arrived, he met her outside and she formed the opinion that he was drunk because he was stumbling when he walked and she could smell alcohol on his breath. He hugged her, which he had never done before, and asked her to come inside. They went in and sat in the lounge room, and she put her car keys and phone on the coffee table.

9. He was sitting on the lounge with her, and the subject of count 1 involved him starting to try to cuddle her. He put his arm around her shoulders and tried to pull her closer to him to put her head on his chest. She pushed him away three or four times, after which he tried to put his head on her chest. She said, "Stop, I have a boyfriend". He followed her to a different position on the lounge, he said, "We're not going to do anything", and she said, "No, we're not, I'm with [victim’s boyfriend] and you're with Jordan", and he said, "I just want to cuddle".

10. He started talking about his relationship with his girlfriend and then he tried to put his right hand down her pants. She was wearing tights, and he put his hand underneath the top of her tights and on the outside of her underwear. She said, "You said we weren't doing anything, think of Jordan", and he said, "I know, I know I'm with Jordan, I'm not going to do anything". The victim picked up her keys and said, "I'm going", but she discovered that he had locked the door and taken the key out of the lock. She said, "I need to go, I've got work tomorrow", and he said, "We need to be quiet" because he had previously said that somebody was asleep in the house.

11. Count 2 involved him sitting on the lounge next to her and he tried to hug and kiss her again while saying, "I know you like older guys, you got daddy issues", she said, "Yes, I do like older guys but not 20 years older". He rubbed up and down her arms with his hands while trying to kiss her; he rubbed her chest, torso, and buttocks area and continuously tried to kiss her on the lips while she tried to move away. Eventually he did kiss her on the lips, again she said, "Think of Jordan", he said, "Stuff Jordan, she goes and flirts with guys at the pub all the time". He again tried to put his hands down the front of her pants, and she pushed him away. He took her pants off, he grabbed her breasts and lifted her shirt and started to kiss them.

12. Count 3 of aggravated sexual assault involved him inserting his fingers from his right hand into her vagina, and digitally penetrating her for a period of time. Count 5 involved him removing her underwear and performing oral sex on her. Count 7 involved him pulling down his own pants and removing his erect penis which he inserted into her vagina and commenced vaginal‑penile intercourse with her for about five minutes. He then stopped suddenly and said, "I can't do this with you, I'm with Jordan, I've cheated on her", and he started crying. He did not ejaculate. She stood up, got dressed, and asked for her keys. He tried to kiss and cuddle her and she said, "No, I have to work tomorrow, I need my keys". He gave the keys to her and unlocked the door. She left at about 2am and returned to her mother's address.

13. The incident lasted for about 15 minutes from the time that she ceased resisting his initial advances. The offender tried to contact the victim a number of times between 2am and about 7am. The next morning, on her way to work she went to see the offender, he was still intoxicated and wearing the same clothes. He asked her to pick him up some cigarettes, but she could not do so because she was under 18. Instead the offender had her drive him to the nearby shops to purchase the cigarettes.

14. She mostly avoided him at school after that, and took time off. There was some contact between them by telephone in the early part of October 2017 including an hour‑long phone call. The first complaint was made after she disclosed to her boyfriend in October 2017 that she had had sex with the offender. This was in response to him asking her a question about why Manojlovic's name appeared on her phone. That was relayed by her boyfriend to the victim’s brother, who then told their mother that the victim “had fucked her teacher.”

15. There was then a confrontation in which she initially denied anything had happened. During a family meeting she described the incidents to her boyfriend, mother, and brother. Her then boyfriend and brother did not provide statements to police and did not give evidence at the trial. Her mother reported the matter to the deputy principal of Bowral High School, Mr Morris, on 23 October 2017. The police contacted victim, who did not want to report the matter, but she later made a statement on 18 December 2017.

16. On 12 July 2018, the offender was arrested at the premises at Colo Vale, and he participated in an interview with Mr Sellers, his solicitor. He said that he was a chronic alcoholic and at the time of the offences he had consumed five to six bottles of wine and some spirits and was, "absolutely blotto". He could not recall her coming to the house, he thought she might have cuddled him to console him, which led to a kiss, and then things went further.

17. He said there was some intimacy which led to the beginning of sexual activity which was consensual, and she was a happy and willing participant. He could not recall fellatio but did recall cunnilingus taking place and that the victim had said, "Wow", at the time, and shortly after the intercourse occurred, he realised how wrong his actions were and he stopped. He denied locking the door and putting her keys and phone into his pocket and said he did not believe he would have been able to do that. He cannot recall her resisting, or trying to leave, or telling him to stop. He expressed regret for his actions, describing it as the biggest mistake of his life.

18. The record of the offender contained only traffic offences, there is a low range PCA in January 2013. In March 2013 another low range PCA and drive while disqualified, and in April 2019, a high range PCA.

19. Evidence for the offender comprises a report of a consultant psychiatrist, Dr Steven Allnutt, who refers to a number of medical records and other documents which were provided to him prior to the preparation of his report. They include a statement from the mother and father of the offender. He noted that the offender was taking an antidepressant and propranolol, but not seeing any mental health professionals. He maintained his innocence in that he did not believe the behaviour engaged in was non‑consensual. He had previously had contact with a counsellor as early as the year 2000 while doing his university degree, when he suffered what he thought was depression and anxiety, and had many episodes of depression lasting longer than two weeks and believed he had been chronically depressed since the age of 12.

20. I should say that the history set out in the report is not one which has been tested or adopted in evidence, and is therefore subject to some caution as set out in cases such as R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144, but given that it is corroborated by various other sources, it appears to be a reasonable basis upon which to proceed.

21. He told Dr Allnutt that at the time of the offending he was drinking at least three bottles of wine daily, and on weekends he also drank spirits and he had been doing so since about 2011. That is consistent with the description of his mother, as being a high functioning alcoholic by this time.

22. There was a traumatic episode in 2009, when he was held up at gunpoint while working at a hotel. At that time, he felt his life was turning around.

23. He had tried cannabis at age 14 and used it until he was about 31. Between ages 16 and 18 he had experimented with acid, and infrequently speed. Throughout his 20s he was addicted to methamphetamine which he used from 2004 to 2008.

24. Dr Allnutt notes that he accepted that what he did was unethical as a teacher, and that he had breached the code of conduct for a teacher. He had first seen a mental health professional when he was admitted to South Coast Private Hospital at around April 2018, for a month. He was diagnosed there with depression, post-traumatic stress disorder, anxiety, and substance use alcoholism. That history is accepted by Dr Allnutt in the light of his access to contemporaneous medical records of that hospital.

25. He was abstinent from alcohol for about six months, but then relapsed. There were further four or five admissions, all for alcohol rehabilitation and detoxification. All followed by periods of relapse. His last admission to that hospital was in January 2020. He had been treated with Valium, Pristiq, Propranolol (for resting tremor), Dexamphetaminegiven to him by a psychiatrist for attention deficit hyperactivity disorder. He had also been taking Seroquel.

26. He described his time in custody as involving hypervigilance, but no suicidal thoughts. There was no abnormal sexual history. He comes from a family of four. He is the third eldest sibling, his parents separated when he was 18 but reconciled in 2002. He had a career as an actor, supporting himself as a bartender, theatre manager and musician following tertiary studies in creative arts. He had worked regularly as a teacher since leaving university.

27. As Dr Allnutt notes, references from him mother and father noted an energetic, intelligent and talented boy; but his marks declined in later years. He was described as attentive to people and supportive towards others. Dr Allnutt suggested that he suffered from a recurrent mood disorder, with associated anxiety and substance use disorder in remission. He noted the episodes of significant trauma in his life, including having a gun put to his head when he worked as a bartender, sexual abuse as a child for a fairly lengthy period, and the death of a sister in childbirth.

28. He described symptoms consistent with hyper mania, but despite seeing several clinicians had never been diagnosed with bipolar, but Dr Allnutt was unable to rule out that diagnosis. He noted that incarceration was a most significant stressor for him. He said that at the time leading up the offending he described symptoms of mood elevation and was likely to be disinhibited as a result of his intoxicated state. He was, at that time, suffering a disturbance in mood, in which his mood disorder had contributed to ongoing alcohol use disorder.

29. Dr Allnutt said his prospects of rehabilitation were good as long has he maintained his abstinence from alcohol and remains in treatment for his mood disorder. He prescribes a regime of treatment by a psychologist and psychiatrist, as well as monitoring by a general practitioner and he needs further residential drug and alcohol rehabilitation program.

30. His mother is a retired librarian. She says that the offender has always been physically and emotionally highly sensitive. She thinks that he has attempted suicide at least twice, although he has reassured her that he will not do so again. She says that when he drinks, he is simply not the person we know him to be, and conversely when he is sober, he is funny, likeable, intelligent and caring.

31. She said he knows that he is genuinely shocked that he has failed community standards and he repeatedly apologises to his parents. She said that his parents and his broader family in the community are absolutely committed to helping him to resume his life as a sober and contributing member of a civil and just society; and they are committed to helping seek further psychiatric treatment and medication and to seek rehabilitation from alcohol abuse; and they fully support his endeavours to supporting himself in a business.

32. His father is a retired school principal. He says that he has been immeasurably pained over the past three years to witness the tremendous stress that the offender has had to experience. He does not shirk from the responsibility of assisting and supporting him and do whatever it takes to help him realise his potential.

33. I have been assisted in the sentencing exercise by the preparation of written submissions by the Crown Prosecutor and by Mr Lloyd QC.

34. As the Crown notes, the maximum penalty and the standard non‑parole period for aggravated sexual assault reflects the fact that it is an extremely serious offence, and non‑consensual intercourse is an invasive and degrading act and intrinsically and extreme form of personal violence. The circumstance of aggravation in the counts 3, 5 and 7, is that the offender was found to be in a position of authority in relation to the victim, as a teacher at her school, and specifically as a mentor in her last year of school.

35. The Crown points to the fact that he was 20 years older than her, he was in a position of authority, he invited her to his parent's home, at night, when he had been drinking heavily. He was aware that this was inappropriate and contrary to his code of conduct, she made clear to him her lack of agreement to sexual conduct. He locked the door and took her car keys. Four of the five offences occurred after he had taken her keys. She was at his home for the first time, late at night, and she felt isolated, she was subject to his offending over a period of about 15 minutes before he suddenly stopped and allowed her to leave. Although there is no Victim Impact Statement (VIS), that does not give rise to an inference that the offending had little or no impact. The Crown's submission is that the offences may fall just below the midrange of offences for this type; but they remain extremely serious noting the wide variety of aggravating circumstances under s 61J of the Crimes Act 1900.

36. There was no evidence of remorse and the offender has maintained, as recently as his interviews with Dr Allnutt, his innocence. The Crown says that his relatively prior good character involving only driving offences has limited relevance in the case of such serious offending.

37. Mr Lloyd's initial submissions put a number of considerations which lead to his ultimate submission that the offending behaviour was at a lower level of objective seriousness; he clarified that in oral submissions to assert that the offending is at the lowest level of the range of objective seriousness for these offences. The matters that he pointed to have been addressed by the Crown in supplementary submissions. He asserts that the offending was unplanned, spontaneous, and opportunistic. To which the Crown asserts that there was a small degree of planning involved in inviting the victim to his parent's home, late at night, and in taking her keys and preventing her leaving.

38. As Mr Lloyd points out, I cannot be satisfied in Olbrich (R v Olbrich (1999) 199 CLR 270) terms, beyond reasonable doubt, of the fact that there was any planning for sexual activity rather than an invitation to her, to attend his home. There is no evidence to support the proposition that he had in mind sexual activity prior to her being in the home. The next point raised by Mr Lloyd was that here was no grooming behaviour, to which the Crown responds that there had been contact between the victim and the offender which breached the proper boundaries of a student teacher relationship; and that the offender had cultivated a friendship with her. Again, I accept Mr Lloyd's submission that cannot be established beyond reasonable doubt that there was grooming within the meaning of this type of offending.

1. It is agreed that the victim was 17 years of age of the offending. It is agreed that there was no threats or persuasion used, and no violence or hostility; but nonetheless it was a frightening experience for the victim, who was scared and unsure of how things would end. The Crown accepts that there were no directions not to report the matter and accepts that the conduct took place over a short period of time; over a total of about 15 minutes.

2. Although Mr Lloyd concedes that she was under the authority of the offender at the time of the offending, he was not her teacher, but he was an infrequent mentor. The Crown does not submit that the harm to the victim is greater than that which would ordinarily expected from the commission of these serious offences. Mr Lloyd asserts that contrary to the victim's assertions, the Court would find on balance that she was in willing contact with him on many occasions after the offending behaviour, over a period of months. The evidence establishes that that was the case, but it is not a matter of any relevance as the Crown submits.

3. Mr Lloyd submits that the circumstances of aggravation being under the authority of the offender, is arguably the least serious of the various circumstances set out in s 61J(2), which the Crown accepts in terms of there being a wide variety of circumstances, but there is no hierarchy and each case needs to be determined on its own facts. Ultimately, I accept Mr Lloyd's submissions that these offences were towards the low end of the range of objective seriousness for each offence.

4. The Crown does not point to any aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.

5. In terms of mitigating factors Mr Lloyd points to his record, as I have indicated, containing only driving offences, so that he is truly said to be of relatively prior good character. I take into account the views of Dr Allnutt, and accept that his prospects of rehabilitation are good, if he undertakes the programs suggested by Dr Allnutt. As Mr Lloyd notes, a failure to express remorse by virtue of not guilty pleas does not disentitle the offender to a finding that his prospects of rehabilitation are good, referring to WLP v R [2014] NSWCCA 183 and BP v R [2010] NSWCCA 159.

6. The Crown takes issue with the assertions as to prior good character and relies upon a statement of the deputy principal of Bowral High School, Mr Morris, who gave evidence at the trial. The statement of Mr Morris, with some annexures, has been tendered on the sentence proceedings. It refers in particular to an email sent by the offender on 1 May 2017 to a former student, which led to Mr Morris writing to the offender of 23 May 2017 and counselling the offender as to his conduct. The Crown asserts that that shows that the offender had formed a sexual relationship with a former student, and that contrary to the code of conduct for teachers, he was in contact with students via social media. However, in my view, the email sent by the offender on 1 May and the circumstances in which Mr Morris became involved has, as Mr Lloyd submitted, nothing to do with this case and does not speak against his favourable prospects of rehabilitation.

7. Mr Lloyd points to a number of other matters to be taken into account on sentencing; first, the strict bail conditions under which the offender was operating for some 18 months or so. In terms of extra curial punishment, it is clear that he has lost his career as a teacher and will not be able to be employed as a teacher again, which is a matter to be taken into account. It is submitted that his physical health and mental health, may be a mitigating factor where evidence establishes that imprisonment will be more burdensome because of those factors, and his prison categorisation is a matter that will be of some significance.

8. The sentencing process is complicated by the onset, since the offender went into custody, of the COVID‑19 global pandemic. That has been the subject of additional submissions by Mr Lloyd, which include a template recently prepared by the Aboriginal Legal Service and the Public Defender. The current status of the pandemic is evolving on a daily basis and the most recent decision to which the parties have referred, is that of Hamill J on 31 March 2020 in Rakielbakhour v DPP [2020] NSWSC 323 in which his Honour sets out the then known fact as to custodial conditions at [14].

9. In particular, his Honour notes that gaols and similar institutions are particularly susceptible to the rapid spread of the virus. A number of inmates have been isolated for having flu like symptoms and inmates are currently subject to more onerous conditions of incarceration. It is expected that inmates will have significant anxiety levels arising from the possibility that a virus is capable of spreading quickly within the prison. The circumstances of the medical crisis has led the New South Wales Parliament to enact emergency legislation, and as his Honour said, ”[t]hese are matters properly to be taken into account", in reference to a bail application, but it also should clearly be taken into account on sentence as the Crown acknowledges.

10. Both of the offender's parents are in their seventies, and not in the best of health, and it is common ground that visits to the offender have been stopped by Corrective Services, a situation which appears likely to remain in place for the foreseeable future. In short, Mr Lloyd submits that the spread of the virus and the effects now and in the future on both the offender and his parents justify a significant discount to an otherwise appropriate sentence so that it comes within the Edwards (R v Edwards (1996) 90 A Crim R 510) category of exceptional hardship.

11. The further written submissions on this topic note that the increased prevalence of the virus gives rise to three critical facts, relevant to the Court's proceedings; first, there is a demonstrable risk that incarceration exposes an inmate to a heightened likelihood of contracting COVID‑19; in circumstances where there is a high mortality rate. Secondly, for people facing fulltime custody sentence there is an apprehended risk of infection and mortality, and thirdly there are the restrictions on the availability of personal visits to all inmates. A restriction on an otherwise valuable right.

12. As the Court said in R v Blanco (1999) 106 A Crim R 303 by analogy in respect of COVID‑19 where there is a state of uncertain suspense existing about transmission of an illness, and consequences in custody, an offender should be entitled to an added element of leniency. In summary, I accept, and the Crown does not challenge, that COVID‑19 must be considered within the matrix of evidence and principles applicable to sentence and the Court should consider that evidence in the light of principles including the impact of health issues on sentence, the hardship faced by prisoners, the safety of prisoners in custody, and the state of uncertain suspense and the hardship to third parties.

13. As a sentence is being passed for multiple offences, it is necessary to take into account questions of totally, and accumulation and concurrency. In particular Mr Lloyd refers to the decision of the Court of Criminal Appeal in Tiatoko v R [2020] NSWCCA 43 at [130] where Leeming J notes that,

“There is no rule that proximity in time necessarily leads to large degrees of concurrency for the sentences imposed for separate offending in a short time period. However, in the present case, the entirety of the offending occurred in slightly more than an hour ... It is clear that this is a case where a deal of the criminality in each offence is best seen as comprehending and reflecting the criminality of the other offences, in accordance with what was said in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]:

52. In Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, as is well known, the Court said at [27],

[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality

53. Where the offences are part of a single episode of criminality, with common facts, it is more likely that the sentence for one of the offences will reflect the criminality of both. The Crown's submission is that an aggregate sentence should be longer than the indicative sentences to reflect the number of offences committed on the night, albeit within a closely confined, temporal, range.

54. I have taken into account the statistics which have been provided by Mr Lloyd. Although they are a blunt took they are of some assistance in indicating a range of sentences which have been imposed in other cases without, of course, indicating anything about the objective or subjective circumstances of the cases the subject of the analysis.

55. The orders that I will make are as follows:

1. The offender is convicted of each offence.

2. The indicative sentences are:

1. Count 1 – 18 months; Non-parole period – 11 months

2. Count 2 – 2 years ; Non-parole period – 15 months

3. Count 3 – 2 years 1 month; Non-parole period – 18 months

4. Count 5 –2 years 9 months; Non-parole period – 20 months

5. Count 7 – 3 years, 3 months; Non-parole period – 22 months.

3. I impose an aggregate sentence of imprisonment of 3 years, 9 months to commence on 10 February 2020.

4. I impose a non-parole period of 22 months expiring on 9 December 2021.

5. I find special circumstances.

Note – Further orders were made in relation to the listing of a bail application pending a conviction appeal in the NSWCCA.

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Amendments

20 May 2020 - Removed pseudonym at [4].

Decision last updated: 20 May 2020