Stanczewski v The Queen
[2021] VSCA 232
•24 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0091
| JASON STANCZEWSKI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 July 2021 |
| DATE OF JUDGMENT: | 24 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 232 |
| JUDGMENT APPEALED FROM: | [2019] VCC 2161 (Judge Pullen) |
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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of a child under the age of 16 – Rolled-up charge – Singing teacher in sexual relationship with 13 year old female student – Delay of 15 years – Whether sentence of 5 years and 11 months with 3 years and 11 months non-parole manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Stanton | Pica Criminal lawyers |
| For the Respondent | Ms E Ruddle QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
Pursuant to leave to appeal granted ‘on the papers’,[1] the appellant contends that a sentence imposed upon him in the County Court for sexual offending against a child under 16 years is manifestly excessive.
[1]Stanczewski v The Queen (Unreported, Court of Appeal, Priest JA, 28 October 2020).
Having now had the benefit of full oral argument, I am not persuaded that the sentence imposed is wholly outside the range of sentences open in the sound exercise of the sentencing discretion. I would thus dismiss the appeal.
My reasons — which in large part recapitulate what I wrote when granting leave to appeal — follow.
Overview
In late 2002, when she was aged 12 years, ‘KB’ commenced singing lessons with the appellant, then aged 32.[2] When she was aged 13, the appellant commenced a sexual relationship with KB which continued until early 2005. The sexual activities in which they engaged included digital and penile penetration of KB’s vagina, and penile penetration of her mouth.
[2]KB was born in September 1990. The appellant’s date of birth is 7 September 1970.
On 10 December 2019, the appellant, now aged 50, pleaded guilty before a judge in the County Court to two charges of sexual penetration of a child under the age of 16[3] and two related summary offences of failing to comply with a direction to assist police.[4] The first charge of sexual penetration was a ‘rolled-up charge’ involving digital and penile penetration, and the second charge involved an act of fellatio.
[3]Crimes Act 1958, s 45(1). The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 465AAA. The maximum penalty is 2 years’ imprisonment.
Following a plea, on 17 December 2019 the judge imposed a total effective sentence of five years and 11 months’ imprisonment upon the appellant, with a non-parole period of three years and 11 months, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Sexual penetration of a child under 16 years 5 years Base 2 Sexual penetration of a child under 16 years 3 years 6 months 11 months Relate summary charges 6 Failing to comply with a direction to assist police 3 months — 7 Failing to comply with a direction to assist police 3 months — Total Effective Sentence 5 years and 11 months’ imprisonment Non-Parole Period 3 years and 11 months Pre-Sentence detention 120 days Section 6AAA Statement 9 years’ imprisonment with 5 years non-parole Other orders Life reporting under s 34 of the Sex Offender Registration Act 2004 (Vic) The offending and aftermath
At the time of the offending, the appellant was aged between 33 and 34 years, and KB was aged 13.
It seems that when KB was growing up, she loved singing. She was in a choir at school, and wanted to take singing lessons. When she was about 10 years old, her mother, ‘MB’, found a singing teacher — the appellant — and took her for a lesson. After that first lesson, however, KB told her mother that she did not want to go back.
The appellant married in August 2002, and, in about 2003, set up a recording studio at his home.
When KB was aged 12 and in Grade 6, her mother again took her for singing lessons with the appellant. The appellant’s studio had a board displaying photos of girls. He told KB and her mother that they were past students, some of whom had musical careers, including singing back-up for Britney Spears. The appellant said he had signed them all up to various music labels. As they were leaving, the appellant told MB that if he were to get the best from her daughter, it would be best to teach KB in her absence. That was the last time that MB went to a lesson with her daughter.
KB was aged about 13 when the appellant told her that she was ready to record a ‘demo’. He set up a website for her, describing her as an ‘up and coming new talent endorsed by Jason Stan’. At around this time the appellant told KB that his marriage was unhappy and he was getting a divorce. In mid-2004 the appellant invited KB to record an album at his home studio. He told his wife that MB was always present during the recording sessions. That was, however, untrue.
When she was half-way through Year 8, KB moved schools. She took every Friday off to record songs with the appellant. Her relationship with her mother had become strained, and she was becoming increasingly close to the appellant, whom she considered to be her best friend. She was spending four to five nights a week at her grandmother’s house. Whilst she was there, the appellant would telephone her and send her text messages.
One Friday, MB took her daughter to the appellant’s home for a lesson. KB was wearing a skirt. After her mother left, the appellant said to KB, ‘Oh my God, what are you doing to me’, and laughed, saying, ‘You’ve found my weakness’. The appellant sat in a chair in the music room and asked KB to hug him. They had hugged many times before. The appellant asked KB to sit on his lap facing him, with her legs either side. He pulled her into a bear hug and thrust his pelvis slowly. He said, ‘That’s what’. KB asked, ‘What’s what?’ He then took her hand and put it on the outside of his pants, below his belt buckle. KB could feel that he had an erection. The appellant put his hand up KB’s skirt and grabbed the inside of her thigh, close to her vagina, saying, ‘Oh my God, what you do to me, girl — far out’. He laughed and said, ‘This isn’t going away anytime soon’.
The appellant then asked KB if she trusted him. She said that she did. He asked her to lie on the ground and positioned himself between her thighs saying, ‘No one, not even you, will ever understand how much I love and adore you’. The appellant then lifted KB’s skirt, kissed the inside of her thigh, laughed and said, ‘You’ve got the G-string on, you’re as bad as me’. He placed one finger, then two, inside KB’s vagina (charge 1 — rolled-up charge sexual penetration of a child under the age of 16).
KB felt pain in her vagina. The appellant then placed his hands either side of her body. KB could still feel something inside her vagina and realised it was the appellant’s penis (charge 1 — rolled-up charge sexual penetration of a child under the age of 16). The appellant moved his penis in and out of her vagina, causing her pain. He kissed her, ran his hands through her hair and told her that he loved her. MB then knocked on the door and he quickly put his penis back in his pants and let her in. MB did not suspect that anything was amiss.
A couple of weeks later, KB, still aged 13, was again in the appellant’s studio. The appellant had an erection and asked KB to put her mouth on it. KB put her mouth around the top of his penis and kissed it for about 30 seconds. The appellant pushed her head down, so that his penis went into her mouth and throat, causing her to gag (charge 2 — sexual penetration of a child under 16).
The sexual relationship between the appellant and KB continued until early 2005. When KB was aged 14, the Department of Health and Human Services (‘DHHS’) became involved with her due to her rebellious behaviour, and she was placed in foster care. Under DHHS questioning, KB denied any improper relationship with the appellant. She did, however, disclose her sexual relationship with the appellant to two friends. And some years later, when aged 20, KB told her mother that she had sex with the appellant during music lessons.
Police arrested the appellant on 11 April 2018. They seized the appellant’s mobile telephone and asked him to provide the PIN so as to access the phone’s data. The appellant declined, indicating that he first wanted to obtain legal advice. (summary charge 7). Police also seized a laptop computer and requested that the appellant provide the password. The appellant refused to provide the password for the laptop (summary charge 6). The appellant was then interviewed by police and declined to comment on the allegations.
Reasons for sentence
In her reasons for sentence, the judge observed that aggravating features of the appellant’s offending was that he was ‘[KB’s] singing teacher, KB was young, and as her teacher, [his] offending involved a breach of trust of not only KB, [but] also of [MB], who trusted [KB] in [his] care’. The failure to wear a condom during penile-vaginal sex was also aggravating.[5]
[5]R v Khem (2008) 186 A Crim R 465.
Although the appellant had no prior convictions for sexual offending, the judge noted that he had convictions in the Magistrates’ Court in September 1992 for criminal damage, unlawful assault and using telecommunications to menace (for which he received a community based order); and in July 1997 for stalking, breaching an intervention order and using a phone service to menace, harass or offend (for which he received a six month suspended sentence of imprisonment and a 12 month community correction order). The appellant’s most recent prior conviction was on 12 April 2001, for using insulting words in a public place. He also had a subsequent conviction for criminal damage in 2010 (for which he received a suspended sentence of imprisonment and a community correction order), which related to ‘trashing’ his former wife’s home.
The judge noted that the appellant had pleaded guilty on the morning of the committal hearing before evidence was called — the pleas having ‘utilitarian benefit’ — and was ‘entitled to a sentencing discount accordingly’. Further, the judge accepted that the ‘plea of guilty indicates some remorse’ for the offending, albeit that the judge was ‘concerned’ about the extent of that remorse.
Although advised of their right to do so, the judge said, neither KB nor her mother had made victim impact statements.
With regard to the appellant’s personal history, the judge noted that he attended Dandenong High School until the start of HSC, then left school to do a Bachelor of Music at the Australian National Theatre. He worked in the music industry as a singer and songwriter, and as a music teacher. The appellant was first married at age 22, that marriage lasting four years. In 2002, he married again, separating in 2009. That marriage produced two children.
Without making any apparent finding, the judge noted the appellant’s instructions to his counsel that he had been sexually assaulted in custody, and therefore had ‘a solitary existence in custody’. The judge also referred to a submission by his counsel that the appellant had not had any contact with his children, aged 12 and 14, and had been unable to provide financial and emotional support to them in custody. He was also worried about his inability to care for his elderly mother whilst incarcerated.
Simon Candlish, a consultant psychologist, had provided a report dated 3 December 2019. He considered that the appellant ‘appears to meet the criteria for Other Specified Personality Disorder (mixed personality features including narcissistic and histrionic traits)’, and that the appellant fell ‘into the Low risk category for sexual recidivism’.
Mr Candlish also reported that the appellant’s parents separated when he was about seven years of age, then intermittently reconciled and separated a number of times. The appellant resided in 11 houses during his childhood, and reported no positive memories of his childhood other than Christmas. He had been sexually abused as a child by a cousin, but had not spoken in any detail about that, save telling his ex-wife. The appellant was subjected to some bullying in primary school, which increased in secondary school. He had no friends and would often sit in a corner against a tree, his existence being ‘horrible’.
Mr Candlish, the judge noted, reported that the appellant ‘stated that the victim would dress provocatively and that he felt the victim’s mother would also dress in a sexually provocative manner and that both the victim and her mother appeared to be in competition over [him]’. As to this, the judge observed that the appellant’s attempt to put blame on the victim was ‘troubling’. As the adult, it was his responsibility to avoid offending. There was ‘a significant power imbalance’ between the appellant and KB.
Further, of ‘concern’ to the judge, Mr Candlish reported:
[The appellant] indicated that he ‘leaned a lot’ on the victim and her mother for emotional support. He stated that when he and the victim started to record a demo, they spent significant amounts of time together and ‘became romantically involved’. He stated that they engaged in oral-penile and penile-vaginal as well as digital-vaginal sexual activity.
[The appellant] stated that ‘she knew exactly what she was doing’ but that ‘there’s no excuse, I should have taken the high road’. He commented that she used to try to make him feel jealous. He later became emotional about the offence and stated that he thought about his own children and viewed his behaviour as abhorrent.
[The appellant] was asked if he felt he was in love with the victim and he responded, ‘I believe that I thought I was’. He commented that they were ‘working together for quite a long time before anything happened’, noting that it was approximately 12 months before he engaged in sexual contact with the victim. He indicated that the victim was fully sexually developed.
As to the appellant’s prospects of rehabilitation, the judge said:
Regarding your rehabilitation prospects, I have some concern regarding your real appreciation of the seriousness and inappropriateness of your offending and arguable minimisation of it. Hopefully, if you undertake appropriate sex offender courses in custody prior to your release, this will improve your prospects of rehabilitation. I do again note your lack of prior sexual offending and good work history and other matters referred to in these sentencing remarks relevant to you prospects of rehabilitation.
I am comforted in your rehabilitation prospects by Mr Candlish, who assessed you as a low risk of sexual re-offending.
The judge referred to the need for general deterrence. There was also a need for specific deterrence, the appellant’s offending not being ‘isolated’. As to protection of the community, the judge said that there ‘is some comfort in that regard from the report of Mr Candlish that [the appellant is] a low risk of sexual re-offending’, but on the other hand ‘there are concerning statements by [him] regarding the inappropriateness of [his] offending’. The judge also noted that she was called upon to denounce the appellant’s conduct and to impose just punishment.
Following his remand on 10 July 2019, the appellant had spent 38 days in custody in relation to an unrelated offence. In accordance with Renzella, the judge took into account one month of that period of custody as ‘dead time’.[6]
[6]R v Renzella [1999] VSCA 85.
Appellant’s submissions
In the written case, the appellant’s counsel submitted that ‘the sentences identified in the ground of appeal were manifestly too long’. Counsel relied on the following:
· First, the appellant’s plea had utilitarian value. There is an important public interest in recognising pleas of guilty, particularly in cases involving sexual offending generally as well as sexual offending against children. The appellant’s guilty pleas spared KB the ‘daunting’ process of giving evidence.
· Secondly, the appellant recognised that his offending was ‘abhorrent’ and he ‘accepted responsibility’ for it.
· Thirdly, the judge accepted the psychological evidence concerning the appellant’s ‘low risk of sexual recidivism’ and the factors that informed that assessment.
· Fourthly, there is the absence of certain aggravating features. This was not a case of proven absence of consent. While ‘grossly improper and resulting in serious criminal misconduct, the appellant appears to have felt affection towards KB’. The offending was not accompanied by ‘overt physical violence’, nor did the appellant make ‘threats to not disclose his offending conduct’.
· Fifthly, there was a ‘delay of more than 15 years from the appellant’s offending to his sentencing’.
· Sixthly, there is a burden of imprisonment for the appellant given he was sexually assaulted in custody and subsequently isolated himself. In custody he had no contact with his children and was unable to care for his elderly mother.
· Seventhly, ‘the one month declared as Renzella time by the sentencing judge’.
· Eighthly, ‘the compressing effect of totality’.
· Ninthly, the principle of parsimony ‘required the court to not impose a sentence that was more severe than that which was necessary to achieve the purposes for which the sentence was imposed’.
In oral submissions, counsel contended that the judge had, in effect, treated the appellant’s offending as constituting an aggravated species of the relevant offence. Charges 1 and 2 were laid under s 45(1) of the Crimes Act 1958 (as amended by s 5 of the Crimes (Amendment) Act 2000), so that by s 45(2)(c) the available maximum penalty was 10 years’ imprisonment. The judge’s reference to KB being trusted in the appellant’s ‘care’,[7] however, was apt to suggest that the judge had sentenced the appellant for the aggravated form of the offence under s 45(2)(b) — where a child between 10 and 16 is ‘under the care, supervision or authority’ of the offender — in circumstances in which the maximum penalty is 15 years’ imprisonment.
[7]See [19] above.
Counsel submitted that the prosecution did not rely on the appellant’s ‘care’ of KB as an aggravating feature, and the prosecutor was at pains to make so much plain to the judge. Thus, the prosecutor said in submissions to the judge:
In terms of aggravating features, Your Honour, the accused was the complainant’s singing teacher. She was a young teenager and was under his care. Sorry, she was a young teenager, full stop.
Further, so counsel submitted, the impression that the judge wrongly took into account the appellant’s supposed ‘care’ as an aggravating factor is emphasised by the individual sentence of five years’ imprisonment on charge 1, which cannot be seen to reflect the plea of guilty and other mitigating features.
Counsel’s oral submissions were also occupied in large part with an examination of Avery[8] — a supposedly comparative case — and a comparison of the circumstances of that case to those of the present. In that case, the applicant, a music teacher aged 33 years, was found guilty of three charges of the sexual penetration of one of his female students, aged 15. One charge related to vaginal penetration with a vibrator, and the other two charges related to penile-vaginal penetration. Not only was the applicant the complainant’s teacher and mentor, but he was a close family friend. He denied any offending and pleaded not guilty to the charges, yet was sentenced to four years’ imprisonment on each of the three charges, orders for partial cumulation resulting in a total effective sentence of five years’ imprisonment, upon which a non-parole period of three years was fixed. Counsel submitted that, notwithstanding the applicant in Avery had run a trial, he received a sentence that was 11 months less than the sentence opposed on the appellant in the present case.
[8]Avery (a pseudonym) v The Queen [2014] VSCA 86 (‘Avery’).
In his reply to oral submissions by the respondent’s counsel, the appellant’s counsel acknowledged that, notwithstanding that current sentencing practices may have changed since Avery was decided, they still remained relevant to the examination of the present sentence.
Respondent’s submissions
In oral submissions, counsel for the respondent submitted that the judge ‘rightly regarded’ the offending as serious. It involved a breach of trust, so that the appellant was able to commit the offences by dint of the trust placed in him by MB. Moreover, the offending was not an ‘isolated incident’.
Counsel for the respondent had submitted in writing that the sentences imposed on each charge, the order for cumulation, the total effective sentence and the non-parole period, were all within the appropriate range and could not be said to be manifestly excessive. Whilst there was an absence of some aggravating features, certain other features ‘elevated the offending’: the abuse of trust; the age difference; the fact that the offending ‘involved some planning’; and the appellant did not wear a condom, thereby exposing the complainant to the risk of disease and pregnancy.
The respondent’s counsel submitted that the judge gave appropriate weight to the appellant’s plea of guilty, and to the appellant’s low risk of recidivism. Further, counsel submitted that the delay of more than 15 years was taken into account by the sentencing judge. The length of time between the offending and the appellant’s sentencing could be considered to have provided time for the appellant ‘to demonstrate steps towards rehabilitation of his own doing’. Counsel also submitted that the appellant’s sexual assault against him in prison was considered by the judge and the appellant’s inability to care for his elderly mother ‘is an inevitable consequence of his imprisonment.’
Counsel for the respondent also submitted that due recognition was given to the ‘dead time’ in custody. Proper weight was also given to the principle of totality. Parsimony was also given adequate weight, in that the judge ‘did not impose a sentence more severe than that which was necessary to achieve the purposes for which the sentence was imposed’. Appropriate treatment, it was submitted, was given to the appellant’s prior convictions, and due weight was given to general and specific deterrence, community protection and the appellant’s low risk of reoffending.
Finally, drawing attention to sentencing statistics, counsel submitted that, while the facts in Avery are similar to those in the instant case, sentencing practices have since changed.
Discussion
When the prosecution seeks to allege that particular sexual activity embraced by a charge is to be viewed in a wider context, it is conventional to lay a representative charge. In circumstances in which a charged offence is representative of a number of offences of a similar kind, the judge may take the uncharged offences into account in determining whether or not the offence for which the offender is being sentenced is an isolated offence (although he or she is not entitled to impose a sentence in respect of those other crimes).[9]
[9]R v Jones [2004] VSCA 68, [12]–[13]; DPP v Jones (a pseudonym) (2013) 40 VR 267, 286–7 [80] (Redlich and Priest JJA).
In the instant case, neither of the charges on the indictment was a representative charge. Importantly, however, the prosecution alleged — without demur by the defence — that after the charged sexual activity took place in mid-2004, the ‘sexual relationship between the complainant and [appellant] continued until early 2005’. The alleged continuing sexual relationship involving uncharged sexual activity was said to provide ‘context’. Hence, the judge — without objection or other submission by the defence — was invited to view the charged sexual activity against the broader backdrop of a continuing sexual relationship, rather than as isolated instances of offending.
As I have mentioned, charge 1 was a rolled-up charge, which is a different species from a representative charge, in that a rolled-up charge is a collection of charges bundled together into a single charge. The use of rolled-up charges can only occur by agreement with the defence and only for the purpose of a plea of guilty, since, if a rolled-up charge were not included by agreement with the defence, the charge would be bad for duplicity. Use of rolled-up charges simplifies the task of sentencing judges. It also works to the advantage of an accused person, since the prisoner is exposed only to a single maximum penalty.[10]
[10]Ibid.
Given that it was a rolled-up charge, the first charge on the indictment included two different types of sexual penetration — digital-vaginal and penile-vaginal penetration — albeit as part of one episode. The individual sentence of five years’ imprisonment must be seen in that light; that is, as a sentence for two separate forms of penetration. Moreover, the sentence must also be viewed against the backdrop that the two offences bundled into a single charge were not isolated instances of offending, but were instead part of a broader sexual relationship that continued over some months. So, too, the sentence of three years and six months’ imprisonment on charge 2 must be viewed in the context of the continuing sexual relationship.
As I have indicated, the appellant’s counsel put Avery at the forefront of his submissions. The applicant in that case, then aged 33, was employed as a music teacher at the complainant’s school. At trial, the prosecution alleged that throughout the period of the alleged offending — 2004 and 2005, when the complainant was aged 15 years — the applicant repeatedly engaged in acts of sexual penetration with the complainant at a series of different locations, including their respective homes, the school and his car. The applicant was the complainant’s music teacher, and also became a family friend. On a regular basis he was invited to the complainant’s home for dinner, and went on camping holidays with her family. Significantly, the indictment contained 17 charges, only three of which resulted in conviction (the jury acquitted the applicant on five charges; there were directed verdicts of acquittal on two; and no verdict was taken on another seven). Each charge resulting in conviction attracted an individual sentence of four years’ imprisonment, partial cumulation resulting in a total effective sentence of five years’ imprisonment.
Despite the reliance placed on Avery, it is important to understand that it decided no more than that the individual sentences of four years’ imprisonment imposed in that case on each charge were within the appropriate range and that the sentence was not manifestly excessive. The reasons of Weinberg JA (with whom Warren CJ and Redlich JA agreed) make that clear. Having provided reasons for refusing leave to appeal against conviction, he said:[11]
Turning to the sentence imposed. The sole ground of manifest excess must be rejected. A sentence of four years’ imprisonment for the sexual penetration of a child under 16 in circumstances such as these is, in my opinion, plainly within range. The applicant’s conduct was deplorable. He was in a position of trust, and grossly abused that trust. He was the complainant’s teacher, her mentor, and a close friend of the family. He had special responsibilities towards her when she babysat his son, and was accordingly in his care, at his home, when she stayed overnight. He had no business engaging in any sexual contact with a child, and particularly one who appears to have been extremely vulnerable throughout the period of his offending.
Similarly, the orders for cumulation, resulting in a total effective sentence of five years’ imprisonment and a non-parole period of three years, were, in my opinion, entirely appropriate.
I would therefore also dismiss the application for leave to appeal against sentence.
[11]Avery, [118]–[120].
In Adajian,[12] Callaway JA observed:
Sentences are not precedents which must be applied unless they can be distinguished and the paramount duty of the Court is to do justice in individual cases.
[12]DPP v Adajian [1999] VSCA 105, [28].
The proper use to be made of comparable sentencing cases was discussed in Zhuang:[13]
Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished.[14] Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. A general overview of sentences imposed for offences of a similar character may, however, play a part in informing the instinctive synthesis,[15] particularly insofar such an overview may provide a general guide to current sentencing practices.
The selection of a sentence involves the exercise of a judicial discretion which is informed by the nature of, and circumstances in which, the offence was committed; and by the character, antecedents and circumstances of the offender. …
[13]DPP v Zhuang (2015) 250 A Crim R 282, 292–3 [30]–[31] (Redlich, Priest and Beach JJA) (citations as in original).
[14]Director of Public Prosecutions (Vic) v Adajian [1999] VSCA 105 at [28] (Callaway JA).
[15]R v Giordano [1998] 1 VR 544 at 549 (Winneke P); cf Director of Public Prosecutions (Cth) v Edge [2012] VSCA 289 at [60] (Priest JA).
In a similar vein, Gageler and Gordon JJ observed in Dalgliesh:[16]
Sentences are not binding precedents,[17] but are merely ‘historical statements of what has happened in the past’.[18] As was said in Hili v The Queen, ‘[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits’[19] (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.
[16]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 454 [83] (‘Dalgliesh’) (citations as in original).
[17]Wong (2001) 207 CLR 584 at 605 [57].
[18]Hili (2010) 242 CLR 520 at 537 [54] quoting Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at 71 [304].
[19](2010) 242 CLR 520 at 537 [54]. See also Director of Public Prosecutions (Vic) v OJA (2007) 172 A Crim R 181 at 196 [31].
The need to have regard to current sentencing practices[20] cannot mean that the sentence appropriate in the instant case was ‘capped and collared’ by the sentence deemed by the sentencing judge to be appropriate in Avery (and held by this Court not to be manifestly excessive).[21]
[20]Sentencing Act 1991, s 5(2)(b).
[21]DPP v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA); Dalgliesh, 445 [51] (Kiefel CJ, Bell and Keane JJ).
In the present case, I granted leave to appeal because I considered it to be reasonably arguable that the sentence imposed on the appellant is manifestly excessive, particularly when due regard is paid to the delay of some 15 years between offending and sentence. Indeed, had I been the judge sentencing at first instance, I would have been inclined to impose a sentence on charge 1 some months less than the sentence selected by the judge, and ordered fewer months to be served by way of cumulation. But that is not to the point.
The thrust of the appellant’s case was that the sentence imposed is manifestly too long.[22] As has been said many times, so much is a conclusion which does not depend upon the attribution of specific error. And as has also been said many times,
it is a conclusion that ordinarily does not admit of much in the way of elaboration or sustained argument.[23]
[22]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[23]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52] (Priest JA).
Although, as I have said, I would not have imposed a sentence of the severity of that imposed by the sentencing judge, after full argument the appellant has failed to persuade me that the sentence imposed is wholly outside the range of those open in the sound exercise of discretion.[24] As I have endeavoured to make clear, given the mitigating features of this case, I consider the sentence to be stern. But the intervention of this Court is not warranted based on that conclusion alone.
[24]Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).
Conclusion
The appeal should be dismissed.
NIALL JA:
I have had the advantage of reading in draft, the reasons for judgment of Priest JA. I agree with him that the appeal should be dismissed for the reasons he gives. I would add the following.
The sentence of 5 years’ imprisonment on a plea of guilty for an offence that carries a maximum of 10 years’ imprisonment was, in the circumstances, a stern one. There are two aspects of the matter that I wish to refer to.
The first of them concerns the nature of the relationship between the appellant and the complainant. The appellant was her singing teacher and both the complainant and her mother were entitled to trust the appellant. The complainant was at a young and impressionable age, and the appellant had promised both her and her mother that he would help her on the way to a professional career. The
environment, including the significant power imbalance, enabled the appellant to exploit the relationship for his own sexual gratification. He was either oblivious to, or undeterred by, the real potential for harm to the child.
The appellant was not charged with the aggravated form of the offence that applies where the child is under the care, supervision or authority of the perpetrator.[25] As the prosecution did not allege a breach of that more serious form of the offence, it was not open to punish the appellant on the basis that one or more of those aggravating features were present.[26] As was explained in R v Howes[27] the words care, supervision and authority bear their ordinary meaning. They will often exist in the context of a teacher-pupil relationship, even where the tuition is sessional, episodic or limited in time or subject matter. However, the presence of those factors of aggravation was not alleged here.
[25]Crimes Act 1958 (Vic) s 49E.
[26]R v De Simoni (1981) 147 CLR 383, 389; [1981] HCA 31 (Gibbs CJ) (‘De Simoni’).
[27](2000) 2 VR 141; [2000] VSCA 159 (Winneke P, Brooking and Chernov JJA).
Nonetheless, that did not render aspects of the relationship that were present, and of a kind that might also be found where there is a relationship of care, supervision or authority, irrelevant. Specifically, it was correct for the judge to identify an ongoing relationship of trust and to regard the breach of it, as significant in her assessment of the gravity of the offending and the appellant’s culpability. There was an exploitative aspect of the offending that added markedly to its gravity. To place emphasis on the breach of trust did not involve any artifice or semantics to avoid the principle in Di Simoni.
Secondly, in my opinion the reservations expressed by the judge as to remorse and insight into the offending were well justified, and they pointed to a need for specific deterrence. Charge 2 was a rolled up charge and although the two acts of penetration occurred as part of a single episode, they remained two separate acts making the offending more serious. It was also accepted before the judge that there was on ongoing relationship between the appellant and the complainant for an extended period of time after the offences were committed. Plainly, this was not a situation in which the offender had immediately come to regret his conduct and taken steps to protect the complainant. Although, on the plea the appellant acknowledged that his offending was abhorrent, it is not easy to discern when he came to that realisation. Indeed, his description to Mr Candlish that he and the complainant had become ‘romantically involved’ and that she would dress ‘provocatively’, were understandably of concern to the judge.
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