Thomas v R

[2019] NSWCCA 265

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Thomas v R [2019] NSWCCA 265
Hearing dates:	27 September 2019
Date of orders:	08 November 2019
Decision date:	08 November 2019
Before:	Payne JA at [1]; Fullerton J at [67]; Adamson J at [68]
Decision:	(1) Application for leave to appeal against sentence allowed. (2) Appeal allowed. (3) Quash each of the sentences imposed by Herbert DCJ on 20 April 2018 and in lieu thereof impose an aggregate sentence of 11 years imprisonment commencing on 19 July 2016 and expiring on 18 July 2027 with a non-parole period of 8 years expiring on 18 July 2024. The first day on which the applicant will be eligible to release on parole is 18 July 2024.
Catchwords:	CRIME – appeals – appeal against sentence – manifest excess – sexual offences against four child victims – 13 counts of indecent assault and 2 counts of aggravated incite act of indecency – individual sentence imposed for each count – total effective sentence of 11 years imprisonment and 8 years non-parole period – most of the individual sentences imposed were manifestly excessive – set aside individual sentences – re-sentence to aggregate sentence of 11 years imprisonment and 8 years non-parole period
Legislation Cited:	Crimes Act 1900 (NSW), ss 61M, 61O Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(5A), 53A Criminal Appeal Act 1912 (NSW), s 6
Cases Cited:	Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Bray v R [2018] NSWCCA 301 Clinch v R (1994) 72 A Crim R 301 Corby v R [2010] NSWCCA 146 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DL v The Queen [2018] HCA 32; 92 ALJR 764 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Jarvis v The Queen (1993) 20 WAR 201 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v The Queen (2001) 228 CLR 357; [2005] HCA 25 Nantahkum v R [2013] ACTCA 40; 279 FLR 148 R v Barry [2011] QCA 119 R v MAK [2006] NSWCCA 381; 167 A Crim R 159
Category:	Principal judgment
Parties:	Matthew Brunel Thomas (Applicant) Regina (Respondent)
Representation:	Counsel: R Wilson SC (Applicant) D Patch (Respondent)   Solicitors: Blair Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2016/162278; 2016/218952;2016/218978; 2016/218982
Publication restriction:	Non-publication of any information or material that may lead to the identification of the victims pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).Non-publication order made on the name of the school.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Crime Date of Decision: 20 April 2018 Before: Herbert DCJ File Number(s): 2016/162278; 2016/218952; 2016/218978; 2016/218982

Judgment

1. PAYNE JA: On 20 April 2018, Herbert DCJ sentenced the applicant Matthew Brunel Thomas following conviction by a jury on 15 counts contained in an indictment relating to four separate victims. To protect the identity of the four child victims I will refer to them as “V1”, “V2”, “V3” and “V4”. The names of the child victims are also subject to statutory non-publication orders. [1]

   1. Children (Criminal Proceedings) Act 1987 (NSW), s 15A; Crimes Act 1900 (NSW), s 578A.

2. Counts 2 and 7 were offences under s 61O(1) of the Crimes Act 1900 (NSW). The maximum penalty for each offence was five years imprisonment. There was no standard non-parole period. The remaining thirteen counts involved offences contrary to s 61M(2) of the Crimes Act. The maximum penalty for each offence was ten years imprisonment. The standard non-parole period was 8 years. The sentencing judge imposed separate sentences for each of the 15 counts which, after application of the principle of totality, involved an effective sentence of 11 years imprisonment and an effective non-parole period of 8 years, commencing on 19 July 2016.

3. A peculiarity in this case is that the sentencing judge chose not to impose an aggregate sentence but rather individual sentences for each of the 15 counts in the indictment. This was a case eminently well suited to an aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act. A further peculiarity in this case is that although there was only one indictment presented against the applicant, the District Court recorded the case as comprising four separate court files (numbers 2016/00162278; 2016/00218952; 2016/00218978; 2016/00218982) relating to counts involving each of the separate victims. Accordingly, in this appeal, there are four separate files before us. There is, however, only one notice of appeal which encompasses each of the matters. The applicant relies on a single ground of appeal, that each of the sentences imposed, including the overall effective sentence, is manifestly excessive.

4. It is convenient to set out in table form the sentences imposed for each of the 15 counts:

Count	Victim	Offence	Maximum sentence/ Standard non-parole period	Objective seriousness	Sentence imposed/ Non-parole period	Start date
1	V1	61M(2) Indecent Assault	10 years / 8 years	Mid-range	5 years / NPP 3 years 9 months	19 July 2016
2	V1	61O(1) Aggravated incite act of indecency	5 years / N/A	Serious	1 year 6 months / NPP 1 year 1 month	19 July 2016
3	V1	61M(2) Indecent Assault	10 years / 8 years	Mid-range	4 years / NPP 3 years	19 July 2016
4	V1	61M(2) Indecent Assault	10 years / 8 years	Below mid-range	3 years 6 months / NPP 2 years 7 months	19 July 2016
5	V1	61M(2) Indecent Assault	10 years / 8 years	Mid-range	4 years / NPP 3 years	19 July 2016
6	V1	61M(2) Indecent Assault	10 years / 8 years	Low range	1 year / NPP 9 months	19 July 2016
7	V1	61O(1) Aggravated incite act of indecency	5 years / N/A	Serious	1 year / NPP 9 months	19 July 2016
8	V2	61M(2) Indecent Assault	10 years / 8 years	Mid-range	4 years 6 months / NPP 3 years 4 months	19 July 2018
9	V2	61M(2) Indecent Assault	10 years / 8 years	Mid-range	4 years / NPP 3 years	19 July 2018
10	V3	61M(2) Indecent Assault	10 years / 8 years	Mid-range	4 years 6 months / NPP 3 years 4 months	19 July 2018
11	V3	61M(2) Indecent Assault	10 years / 8 years	Mid-range	4 years / NPP 3 years	19 July 2018
12	V3	61M(2) Indecent Assault	10 years / 8 years	Below mid-range	3 years 6 months / NPP 2 years 7 months	19 July 2018
13	V3	61M(2) Indecent Assault	10 years / 8 years	Mid-range	4 years 6 months / NPP 3 years 4 months	19 July 2020
14	V3	61M(2) Indecent Assault	10 years / 8 years	Below mid-range	3 years / NPP 2 years 3 months	19 July 2021
15	V4	61M(2) Indecent Assault	10 years / 8 years	Mid-range	5 years / NPP 2 years	19 July 2022

5. After the application of the principle of totality, the sentences imposed for offences against V1 and V2 were internally wholly concurrent. There was a small measure of accumulation for the counts involving V3. Only one offence (count 15) related to V4. In addition to this internal accumulation there was very substantial accumulation between the sentences imposed for all four victims. As earlier noted, the sentencing judge imposed an effective period of imprisonment of 11 years and an effective non-parole period of 8 years.

Relevant facts

6. In 2015 and 2016, the applicant was a teacher at a Catholic primary school. In each of these years the applicant taught Year 6. He also held additional duties as Sports Co-ordinator for the school. The sentencing judge made a non-publication order concerning the name of the Catholic primary school where the offences occurred for the purposes of protecting the identity of the victims.

Counts 1 – 7, V1

7. V1 is the victim of the first seven offences committed by the applicant. She was a pupil in his Year 6 class in 2015.

8. In the first count, V1 was 11 or 12 years of age. The applicant called her into his office which was located in the far corner of the classroom. The applicant took hold of her hand and held it to his penis on top of his clothes. He used the victim’s hand to squeeze his penis, saying, “Can you squeeze it and play with it like play doh.” V1 did so because she did not know what else to do. The applicant said “Just keep doing it like this.” This lasted for a couple of minutes. The applicant said to the victim, “This is between me and you. If you tell anyone we will be in trouble and no one will believe you.” The sentencing judge found this offending to be in the mid-range of objective seriousness.

9. In the second count, in Term 4, V1 was in her Year 6 classroom with the other students. She was 12 years old. The applicant offered to help her with maths in the library. V1 and the applicant walked to the library which was in an adjoining room with a glass panelled wall which could be opened. There were a number of other students in the library and the applicant told them to leave. V1 and the applicant moved to an area of the library and the applicant said words to the effect of “Just grab my private area.” V1 placed her hand on the applicant’s penis on the outside of his pants. She squeezed and rubbed his penis for a number of minutes before the applicant said “thanks”. The sentencing judge found that the applicant created the opportunity to commit the offence by isolating the 12 year old child. The applicant had groomed V1 to a stage where she was accustomed to sexual interaction before the applicant asked her to touch him. She complied and the offence continued for some minutes. The sentencing judge described this as “a serious example of such an offence”.

10. In the third and fourth counts, V1 was 11 or 12 years of age. V1 was in her Year 6 classroom with other students in her class. The applicant asked her to go into his office and do a job for him. She complied and walked into the office. The applicant followed V1 into the office and wrapped his hand around her waist. He grabbed her hand and placed it on his penis, moving her hand in a rubbing motion on his penis on top of his clothes (count 3). While V1 was rubbing the applicant’s penis the applicant placed his left hand on the victim’s left breast on top of her clothes and squeezed it (count 4). The sentencing judge found the offence in count 3 to be in the mid-range of objective seriousness and count 4 to be below the mid-range of objective seriousness.

11. In the fifth and sixth counts, V1 was 12 years old. V1 was in her classroom with other students in her class. The applicant asked V1 and her friend to go into his office and do a job for him. The girls walked into the office and completed a task for the applicant. When they finished the task her friend walked back into the classroom and the applicant said to V1, “Can I speak to you for a second?” V1 remained in the office and the applicant hugged her tightly. He grabbed her hand and placed it on his penis on top of his clothes. The applicant removed his hand and the victim continued to rub his penis with her hand (count 5). A short time later, V1 stopped rubbing his penis and went to leave the office area. The applicant grabbed her chin, pulled her neck up and kissed her on the top of her nose, saying “You can go now” (count 6). The sentencing judge found count 5 to be in the mid-range of objective seriousness and count 6 to be in the low-range of objective seriousness.

12. In the seventh count, V1 was 12 years old. The applicant asked V1 to help him clean the sports shed. V1 was alone with the applicant cleaning the sports shed when he said, “Can you grab my private area?” They moved to a corner of the sports shed and the victim placed her hand on the applicant’s penis on the outside of his clothing and squeezed it and rubbed it for several minutes. By this time V1 said it had been happening for so long that she knew what he wanted her to do when he asked. The sentencing judge found this to be a serious example of such an offence as the child was incited to touch the applicant’s erect penis over his clothes and she did so as a result of this incitement.

Counts 8 – 9, V2

13. In 2016, V2 was a student in the applicant’s class. V2 was 11 years old at the time of the offences.

14. In the eighth count, V2 was in class and the applicant asked her to help him in the sports shed. V2 went to the sports shed with the applicant, he stood behind her in a corner of the shed and grabbed her left hand and held it tightly. He placed her hand on his penis on the outside of his clothes, rubbing his penis up and down with her hand. The applicant told V2 to wiggle it up and down. She complied and continued to rub the applicant’s penis up and down for about 30 seconds. This made V2 feel extremely uncomfortable and so she told the applicant she needed to go to do her school work and ran back to the classroom. The sentencing judge found count 8 to be in the mid-range of objective seriousness.

15. In the ninth count, V2 and the applicant were in the Year 6 classroom at school. Whilst the rest of the class were being taught by one of the other teachers, the applicant asked V2 to help him look for books. They walked into the Reading Resources Room and went between two rows of book shelves. The applicant stood behind V2 and placed his hand underneath the front of her shirt and inside her crop top. He rested his hand on her breast for about 30 seconds. V2 made an excuse as to why she had to leave and returned to the classroom. The sentencing judge found the offence to be within the mid-range of objective seriousness.

Counts 10 – 14, V3

16. V3 was a student in the applicant’s class and 11 years old at the time of the offences.

17. In the tenth count, V3 was in her Year 6 classroom. The applicant asked her to help him in the sports shed. V3 went to the sports shed with the applicant. Once inside the sports shed, the applicant pulled down the roller door almost to the floor and approached V3. He placed his hand on V3’s vagina on the outside of her uniform which made V3 feel very uncomfortable.

18. In the eleventh count, the applicant moved and stood behind V3 and placed his hand down the front of her sports shirt and inside her crop top, resting his hand on her right breast.

19. In the twelfth count, V3 told the applicant to stop and she tried to run from the sports shed. As she made her way towards the door she knocked over some sports items causing them to fall to the ground. She stopped to pick them up and the applicant told her to come back to where he was in the sports shed and pick up other items. The victim was scared so she complied and bent over to pick up the items. At this time the applicant used his hand to squeeze her buttocks. The sentencing judge found the offences in counts 10 and 11 to be within the mid-range of objective seriousness and count 12 to be below the mid-range of objective seriousness.

20. In the thirteenth count, the applicant again asked V3 to come with him to the sports shed. Once in the sports shed, the applicant pulled down the roller door so there was only a small gap at the bottom and no one could see in. The applicant asked V3 if she could massage something, indicating his penis. The victim said “no”. The applicant grabbed her left hand and placed it on his penis on top of his clothes and told her to massage it. The victim was scared and uncomfortable so she ran to the door of the sports shed and crawled out through the small gap under the door, grazing her knees. The victim ran to a nearby classroom where she told the teacher that she was there to help with cleaning. The sentencing judge found that persisting when the child said “no” increased the seriousness of the offence, but that it was still within the mid-range of objective seriousness.

21. In the fourteenth count, V3 was alone with the applicant in a classroom. The applicant called out to her and she asked him what he needed from her. The applicant asked her to “Come here”. V3 replied “No” and told him that she was going to report him to the principal. The applicant pulled out a packet of lollies and offered some to her. V3 walked to the applicant, took a lolly and ate it. At this time the applicant used his hand to touch the victim’s left breast on top of her clothing. V3 immediately ran out of the classroom and downstairs to where the other children were. She told her friend V2 about what happened. The sentencing judge found that this offence was opportunistic. The sentencing judge found the offence to be below the mid-range of objective seriousness. The fact that the applicant persisted when the child clearly objected and lured the child with lollies were relevant factors.

Count 15, V4

22. On 3 May 2016 V4 was driven to school by her mother to attend a cross country carnival at another location early in the morning. V4 was nine years old at the time. V4 is the younger sister of V3. As it was early and no other students were at the school the victim’s mother waited whilst V4 ran inside to the front office to check if any teachers were there. V4 saw the applicant and signalled to her mother that she could leave. V4 and the applicant walked to the classroom to wait for the other students who were competing at the cross country carnival to arrive. The victim sat down on a lounge in the classroom and the applicant sat next to her.

23. The applicant grabbed hold of the victim’s hand, placed it on his penis on the outside of his clothes and held it there. The applicant said “Do you feel comfortable”, she did not respond and could feel his erect penis beneath his clothes. After about 50 seconds V2 entered the classroom. The applicant let go of V4’s hand and stood up. He told the victim V4 and V2 to go downstairs and check if any other students had arrived. V4 told her teacher, Ms S, about the incident on 21 June 2016. The fact that V4 was only nine years old added significantly to her level of vulnerability and defencelessness. The offence was of a relatively short duration. The sentencing judge found the offence to be within the mid-range of objective seriousness.

Subjective matters

24. At the time of sentencing the applicant was 51 years of age. He has prior convictions for offences of dishonesty and traffic matters. The sentencing judge found that the applicant’s prior criminal record disentitled him to leniency.

25. There were no reports tendered on behalf of the applicant. His background history was detailed in two letters he wrote to the Court. The applicant is one of three children. His parents divorced when he was 15 years old and the applicant remained living with his father. Prior to his arrest the applicant ceased contact with his father and siblings due to a falling out. After a period of estrangement the applicant had a close relationship with his mother. The applicant has been married twice. His first marriage lasted between 2001 and 2012. There were no children from this marriage. The applicant married again in 2015. The applicant’s second wife had three children. At the time of sentencing the applicant’s step-children were aged 18, 16 and 12 and had a close relationship with the applicant.

26. Upon completing high school the applicant enrolled in university but discontinued. He spent some years working in the fast food industry and hospitality until he commenced studying to be a teacher in 2007. The applicant worked as a teacher from 2012 at a Catholic primary school. In 2012 allegations of inappropriate conduct by the applicant towards students, including inappropriate touching, were raised. The applicant was stood down from teaching. His contract was not renewed at that school. From 2013, the applicant started teaching, initially on a casual basis, at the Catholic primary school where the present offences occurred. That school was in a different administrative zone of the Catholic education system to the school where the earlier allegations had been made. From 2014 until his arrest the applicant taught at this school.

24. The applicant, whilst on remand, was in the “Special Management Area Placement” and, on his own request, was on “Protection Limited Association Area” at the time of sentencing. This prevented access to education, work and the library. The applicant suffered medical difficulties in custody. He had emergency surgery. He lost a significant amount of weight, and suffers pain from his arthritic hips which is ongoing in part due to the medication available in custody. The applicant’s wife, three step-children, his mother-in-law and father-in-law all provided letters of support to the sentencing judge. All spoke of the applicant’s personal qualities as a kind and loving person who is always willing to help others. The sentencing judge found that none of the material raised in these letters would be sufficient to make a finding of hardship and there was nothing exceptional in that material.

25. The sentencing judge found the applicant’s prospects of rehabilitation were guarded. The applicant had not accepted responsibility for his actions which were committed on separate victims over a period of time. There was no indication whether the applicant would be willing to engage in offence-specific treatment. If he were, this might have enhanced his prospects of rehabilitation. Her Honour could not be satisfied that the applicant would not commit further offences.

26. In relation to moral culpability, the offences with respect to V1, V2 and V3 were said by the sentencing judge to be “representative” counts. The ongoing contact with V1 was in the nature of grooming. As such, the applicant did not receive the benefit of any finding that the offences were isolated offences.

27. The sentencing judge found that the applicant was well aware of the consequences of his indecent dealings with his pupils. The applicant had previously been the subject of an investigation and been suspended. The applicant was excluded from employment with any of the 150 schools in the Catholic Education Office, Sydney. Thereafter, the applicant secured employment in a different diocese and committed the offences against these victims. Accordingly, the sentencing judge found that personal deterrence must be given considerable weight.

28. Despite the character references the sentencing judge did not find the applicant to be a person of prior good character, based on the tendency evidence led at the trial. On a contingent basis, her Honour found that s 21A(5A) of the Crimes (Sentencing Procedure) Act1999 (NSW) would in any event apply to prevent prior good character from being taken into account as a mitigating factor. The sentencing judge took into account the applicant’s medical difficulties which would result in a degree of additional hardship from being in custody.

Submissions of the parties

Applicant’s submissions

32. The applicant does not point to any specific error in the sentencing judge's decision-making process. It was submitted that was a case where the sentencing judgment followed an impeccably reasoned path to a manifestly excessive sentence.

33. The applicant submitted that there was little utility in resorting to comparable cases or sentencing statistics in this case, because of the broad range of circumstances of offences and offenders: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]-[55]. Rather, the applicant submitted that having regard to the maximum penalties, the standard non-parole period applicable and the circumstances of the offences and the offender, the sentences are manifestly excessive.

34. The applicant noted that two of the offences had a maximum penalty of 5 years imprisonment with no standard non-parole period. The other offences had a maximum penalty of 10 years and a standard non-parole period of 8 years. It was submitted that in considering the question of manifest excess, this Court is required to consider those two legislative guideposts.

35. The applicant submitted that this Court has previously noted that this particular standard non-parole period is set at such a high proportion of the maximum penalty that it is curious and difficult to reconcile it with the maximum penalty: Corby v R [2010] NSWCCA 146 at [71] (Johnson J, Beazley JA and Kirby J agreeing). It was further submitted that this Court has noted this particular standard non-parole period is anomalous with the result that the regard to be given to it is minimal compared with what it otherwise might be: Bray v R [2018] NSWCCA 301 at [72] (R A Hulme J, Macfarlan JA and Rothman J agreeing).

36. It was submitted that an overall effective sentence of 11 years with a non-parole period of 8 years is a very lengthy sentence of imprisonment. It is the kind of sentence which might be expected to be imposed for very serious examples of offences with maximum penalties of 20 or 25 years or life imprisonment or for offences by repeat offenders who have previously been sentenced to gaol.

37. The applicant submitted that appellate courts in this State and throughout Australia have observed that the severity of sentences increases at a greater rate than the linear increase in their length, referring to: Jarvis v The Queen (1993) 20 WAR 201; Clinch v R (1994) 72 A Crim R 301 at 306 (WA); R v MAK [2006] NSWCCA 381; 167 A Crim R 159; Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372; R v Barry [2011] QCA 119; Nantahkum v R [2013] ACTCA 40; 279 FLR 148. In Clinch at 306 (citing Ipp J in Jarvis), Malcolm CJ said referring to “the fact that the severity of a term of imprisonment increases exponentially as it increases in length”:

“In other words, the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year.”

38. The applicant submitted that this factor probably explains the phenomenon he said was readily visible from sentencing statistics and surveys of cases: that the vast majority of sentences for any given offence tend to be less than half of the maximum penalty. It was submitted that, more importantly, this factor demonstrates the fallacy of approaching sentencing in a mathematical manner similar to that which was criticised by the High Court in Markarian v The Queen (2001) 228 CLR 357; [2005] HCA 25 at [31]. The applicant submitted that it is equally erroneous to reason that offences in the mid-range of objective seriousness for offences of their kind ought to attract sentences of about half of the maximum penalty. That, too, would be to “use a prescribed maximum erroneously”: Markarian at [31].

39. On this basis, the applicant submitted it is no answer to the applicant’s claim of manifest excess to note that:

1. the sentencing judge found the objective seriousness of the offences to be in the mid-range; and

2. the sentence is about half the maximum penalty.

40. The applicant conceded that the criminality involved in most, but not all, of the individual offences was moderately serious and called for full-time custodial sentences. However, having crossed the threshold of s 5 of the Crimes (Sentencing Procedure) Act the applicant submitted that nothing about the circumstances of the s 61M(2) offences or of the offender justified sentences ranging from 3 to 5 years. The overall criminality of the offending did not justify a total effective sentence of 11 years or a total effective non-parole period of 8 years.

41. The applicant submitted that while the offender did not have the benefit of remorse or good prospects of rehabilitation, nor did he have aggravating features such as a relevant prior criminal record, a breach of conditional liberty, a diagnosis of paedophilia or a finding of dangerousness. The applicant submitted that this Court would find error, grant leave to appeal and re-sentence the applicant.

Crown submissions

42. The Crown submitted that the sentencing judge set out each offence and made a considered assessment of the offending and relevant attendant circumstances to arrive at the relevant sentences. The Crown submitted that no authority or other material had been advanced to support the applicant’s submission regarding the kind of case where such a sentence might be expected.

43. In relation to the applicant’s submission concerning the “anomalous” nature of the standard non-parole period, the respondent submitted that it was clearly the intention of the legislature to set an 8 year standard non-parole period for this offence. In a democratic society, it is not the role of the courts to go behind the clearly expressed intention of the Parliament.

44. In response to the submission that the severity of sentences increases at a greater rate than their length, the respondent submitted that the sentencing judge did not follow the approach criticised in Markarian, that is, to take the maximum penalty and make a “proportional deduction” from it. The Crown submitted that her Honour paid careful attention to the maximum penalty and, where relevant, the standard non-parole period for the s 61M(2) offences and took it into account in the balancing exercise “with all of the other relevant factors” as a “yardstick”.

45. The Crown submitted that the sentencing judge did not find that the matters all fell within the mid-range of objective seriousness, noting the sentencing judge found that:

1. for count 4, the offence fell “below the mid-range”;

2. for count 6, the offence fell “in the low range”;

3. for count 12, the offence fell “below the mid-range”; and

4. for count 14, the offence fell “below the mid-range”.

46. The Crown submitted that the proposition that “the severity of a sentence increases at a greater than linear fashion” supports the claim of manifest excess suffers from similar difficulties to taking a mathematical approach to determining an appropriate sentence in any given matter. The applicant was contending, in effect, that by virtue of the greater length of time of the sentence there is, on the face of the result, manifest excess.

47. The Crown submitted that the question for this Court was ultimately whether the total effective sentence reflects the totality of the criminality. It was submitted that no lesser sentence than the effective sentence imposed was warranted.

Consideration

48. To succeed on this ground the applicant must first establish that one or more of the sentences imposed was “unreasonable” or “plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Markarian at [25]; Hili v The Queen at [59]. In Dinsdale, Gleeson CJ and Hayne J stated:

“[6] Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”

49. In approaching the individual sentences imposed by the sentencing judge I acknowledge that there is no single correct sentence. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features: Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].

50. Ultimately, the test to be applied when considering whether a sentence is manifestly excessive or manifestly inadequate is whether the sentencing outcome is simply and unaccountably too severe or too lenient, having regard to all relevant objective and subjective features in each case.

51. I have concluded that a number of the individual sentences imposed by the sentencing judge were unreasonable or plainly unjust. The individual sentences must be appropriate in the light of the circumstances of the offending, the guideposts of the maximum penalty, and, in respect of the s 61M(2) offences, the standard non-parole period, for each offence. In this latter regard, there is no doubt that the standard non-parole period of 80% of the head sentence provided by s 61M(2) is anomalous. It has been remarked upon in this Court on many occasions. It is, however, necessary for sentencing courts to give proper attention to the standard non-parole period, even when, as here, the term of that period approaches the maximum term provided for the offence: Bray v R [2018] NSWCCA 301 at [72]; Corby v R [2010] NSWCCA 146 at [71].

52. The applicant in this Court accepted that most, but not all, of the individual offences were moderately serious. I agree with that characterisation. The applicant also conceded, correctly, that each offence crossed the threshold of s 5 of the Crimes (Sentencing Procedure) Act such that a sentence of imprisonment was inevitable for each offence.

53. I have concluded that there is merit in the applicant’s complaints about a large number of the individual sentences. Whilst still constituting serious offending, offences involving the applicant touching a victim over the victim’s clothes or inciting a victim to touch the applicant over his clothes should not have attracted such heavy individual sentences. I accept the applicant’s submission that in many of the individual counts the objective circumstances of the offending are such that one would not expect the penalty to be anywhere near the halfway point of the maximum penalty, even assuming that the counts were “representative” as described by the sentencing judge.

54. In relation to V1, there were five separate instances of offending:

1. Count 1 involved the applicant taking hold of V1’s hand and holding it to his penis on top of his clothes whilst directing her to “squeeze it and play with it like play doh”. The sentence of 5 years with a non-parole period of 3 years and 9 months was manifestly excessive for this offending. Whilst serious, inciting V1 to touch the applicant over his clothes for a couple of minutes should not have attracted a sentence of half of the maximum penalty;

2. Count 2 involved the applicant in the library with V1. The applicant said words to the effect of “Just grab my private area.” V1 placed her hand on the applicant’s penis on the outside of his pants and squeezed and rubbed his penis for a number of minutes. I would not describe the sentence imposed of 1 year and 6 months imprisonment with a non-parole period of 1 year and 1 month as manifestly excessive for this conduct;

3. Counts 3 and 4 involved conduct in the applicant’s office where the applicant grabbed V1’s hand and placed it on his penis, moving her hand in a rubbing motion on his penis on top of his clothes (count 3) and simultaneously squeezing the victim’s left breast on top of her clothes (count 4). The sentence for count 3, 4 years imprisonment with a non-parole period of 3 years, was manifestly excessive. The sentence for count 4, which was objectively less serious than count 3, 3 years and 6 months with a non-parole period of 2 years and 7 months, was also manifestly excessive;

4. Counts 5 and 6 involved conduct in the applicant’s office where the applicant grabbed V1’s hand and placed it on his penis on top of his clothes. The applicant removed his hand and the victim continued to rub his penis with her hand (count 5). A short time later the applicant grabbed V1’s chin, pulled her neck up and kissed her on the top of her nose, saying “You can go now” (count 6). The sentence for count 5, 4 years imprisonment with a non-parole period of 3 years, was manifestly excessive for the reasons given in relation to count 1. The sentence for count 6, which was objectively much less serious than count 5, 1 year imprisonment with a non-parole period of 9 months, was also manifestly excessive;

5. Count 7 involved the applicant asking V1 to help him clean the sports shed. Once alone the applicant asked V1 to touch him and the victim placed her hand on the applicant’s penis on the outside of his clothing and squeezed it and rubbed it for several minutes. I would not describe the sentence imposed of 1 year imprisonment with a non-parole period of 9 months as manifestly excessive for this offending.

55. In relation to V2, there were two separate instances of offending:

1. Count 8 involved conduct in the sports shed where the applicant grabbed V2’s left hand and placed it on his penis on the outside of his clothes, causing her to rub his penis up and down with her hand. The sentence of 4 years and 6 months with a non-parole period of 3 years and 4 months was manifestly excessive for this offending for the reasons given in relation to count 1;

2. Count 9 involved conduct in the Reading Resources Room. The applicant stood behind V2 and placed his hand underneath the front of her shirt and inside her crop top. He rested his hand on her breast for about 30 seconds. The sentence of 4 years with a non-parole period of 3 years was manifestly excessive for this offending which was less serious than count 8.

56. In relation to V3, there were three separate instances of offending:

1. Counts 10, 11 and 12 involved conduct in the sports shed. In count 10, the applicant placed his hand on V3’s vagina on the outside of her uniform. The sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years and 4 months was manifestly excessive for this offending for the reasons given in relation to count 1. In count 11, the applicant placed his hand down the front of V3’s sports shirt and inside her crop top, resting his hand on her right breast. The sentence of 4 years imprisonment with a non-parole period of 3 years was manifestly excessive for this offending which was less serious than count 10. In count 12, the applicant used his hand to squeeze V3’s buttocks. The sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 7 months was manifestly excessive for this offending which was less serious than both counts 10 and 11;

2. Count 13 involved conduct in the sports shed. The applicant asked V3 if she would massage his penis. The victim said “no”. The applicant grabbed her left hand and placed it on his penis on top of his clothes and told her to massage it. The victim was scared and uncomfortable so she ran away. The sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years and 4 months was manifestly excessive for this offending for the reasons given in relation to count 1;

3. Count 14 involved conduct where the applicant offered lollies to V3 who took a lolly and ate it. At this time the applicant used his hand to touch V3’s left breast on top of her clothing. The sentence of 3 years imprisonment with a non-parole period of 2 years and 3 months was manifestly excessive for this offending.

57. In relation to V4, there was one instance of offending:

1. Count 15 involved conduct where the applicant grabbed hold of the 9 year old victim’s hand, placed it on his penis on the outside of his clothes and held it there. The applicant said “Do you feel comfortable”, she did not respond and could feel his erect penis beneath his clothes. After about 50 seconds when another child entered the classroom, the applicant let go of V4’s hand and stood up. Given the age of the victim, 9, and the position of authority the applicant enjoyed as a teacher at the school, whilst the sentence imposed of 5 years imprisonment was manifestly excessive, I would not so conclude in relation to the non-parole period of 2 years.

58. Error having been demonstrated, this Court is obliged to re-sentence: Criminal Appeal Act 1912 (NSW), s 6(3), as explained in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. This was a case eminently well suited to an aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act. I propose therefore that the Court should set aside all of the sentences imposed by the sentencing judge and impose an aggregate sentence for all of the offending.

59. In re-sentencing, I adopt the findings of the sentencing judge about the objective seriousness of each of the counts in the indictment. In conducting the required re-sentencing, and in the absence of any challenge by the Crown, I accept all of the findings favourable to the applicant made by the sentencing judge. As the High Court has made clear, the interests of justice will generally not be served by permitting either party to make a new or different case on the hearing of the appeal: DL v The Queen [2018] HCA 32; 92 ALJR 764 at [38].

60. In re-sentencing I have also taken into account the evidence in the affidavit of Aloysius Laurence Robinson, a solicitor for the applicant, affirmed on 27 September 2019, read on the usual basis. The relevant matters are these:

1. Mr Robinson’s affidavit annexed a number of documents relating to the applicant’s current imprisonment. The applicant suffers from asthma and arthritis. The applicant is unsatisfied with his medication regimen for these conditions as opposed to what he was on in the community, and he has made many unsuccessful requests to be prescribed the same medication he was prescribed in the community. As earlier noted, the sentencing judge expressly took into account the applicant’s medical difficulties which would result in a degree of additional hardship from being in custody. This evidence confirms that finding;

2. On 20 May 2019, the applicant made an application to participate in custody-based sex offender programs. This must be taken into account in the applicant’s favour, although my overall assessment accords with the sentencing judge’s finding that the applicant’s prospects of rehabilitation remain “guarded”;

3. The applicant has engaged in and completed a number of educational courses while in custody and has been working as a maths and literacy tutor in an inmate tutoring program. I take this conduct into account in the applicant’s favour;

4. Current risk assessments showed that the applicant’s risk of reoffending has been assessed under the Static-99R test as an “average risk” of reoffending and under the Level of Service Inventory-Revised (LSI-R) test as a “medium-low risk of reoffending”. I take this material into account, but like the sentencing judge, I am not satisfied on all of the evidence that the applicant would not commit further offences in the future.

61. On re-sentence I would impose an aggregate sentence of 11 years with an aggregate non-parole period of 8 years. This is the same sentence as the effective sentence imposed by the sentencing judge after taking into account the principle of totality. That is, whilst I have concluded that the individual sentences imposed by the sentencing judge were manifestly excessive, the overall effective sentence and overall effective non-parole period imposed by the sentencing judge were not manifestly excessive. If the sentencing judge had proceeded by way of aggregate sentence I would have dismissed the application for leave to appeal on the basis that no lesser sentence was warranted. It is only by reason of the length of the separate sentences imposed that it is necessary to intervene and quash those separate sentences.

62. The principal reasons for the aggregate sentence I propose are that the offending in this case comprised persistent predation by the applicant upon four primary school age girls under his care. The girls were aged 11, 12 and 9. The applicant was 51 years old. The applicant directed three of these very young girls to go to particular places in the school so that he could have them rub his erect penis or otherwise indecently assault them. The applicant was able to act as he did due to his position of authority as their teacher. The girls were in no position to refuse the applicant’s demands. On the two occasions when one of the young victims said “no”, the applicant nevertheless persisted.

63. The applicant did not have the benefit of any finding of remorse or good prospects of rehabilitation. The offending occurred at a time when the applicant had already been suspended for similar conduct at another school. The verdicts of the jury reveal multiple acts of offending over a period of time when the victims were subject to the authority of the applicant, who regularly used his position to isolate the victims so he could commit offences upon them.

64. What is critical in this case is a determination of the minimum period of imprisonment necessary to reflect all of the objective and subjective circumstances of the offending. I have concluded that an aggregate sentence of 11 years with an aggregate non-parole period of 8 years is the minimum period necessary to reflect all of those circumstances.

65. The indicative sentences and indicative non-parole periods for those counts involving a standard non-parole period are as follows:

Count	Victim	Offence	Maximum sentence/ Standard non-parole period	Indicative sentence and (where relevant) indicative non-parole period
1	V1	61M(2) Indecent Assault	10 years / 8 years	3 years imprisonment with a non-parole period of 2 years
2	V1	61O(1) Aggravated incite act of indecency	5 years / N/A	1 year and 6 months imprisonment
3	V1	61M(2) Indecent Assault	10 years / 8 years	3 years imprisonment with a non-parole period of 2 years
4	V1	61M(2) Indecent Assault	10 years / 8 years	1 year imprisonment with a non-parole period of 8 months
5	V1	61M(2) Indecent Assault	10 years / 8 years	3 years imprisonment with a non-parole period of 2 years
6	V1	61M(2) Indecent Assault	10 years / 8 years	2 months imprisonment
7	V1	61O(1) Aggravated incite act of indecency	5 years / N/A	1 year imprisonment
8	V2	61M(2) Indecent Assault	10 years / 8 years	3 years imprisonment with a non-parole period of 2 years
9	V2	61M(2) Indecent Assault	10 years / 8 years	2 years imprisonment with a non-parole period of 1 year
10	V3	61M(2) Indecent Assault	10 years / 8 years	2 years imprisonment with a non-parole period of 1 year
11	V3	61M(2) Indecent Assault	10 years / 8 years	2 years imprisonment with a non-parole period of 1 year
12	V3	61M(2) Indecent Assault	10 years / 8 years	2 years imprisonment with a non-parole period of 1 year
13	V3	61M(2) Indecent Assault	10 years / 8 years	3 years imprisonment with a non-parole period of 2 years
14	V3	61M(2) Indecent Assault	10 years / 8 years	1 year imprisonment with a non-parole period of 8 months
15	V4	61M(2) Indecent Assault	10 years / 8 years	4 years imprisonment with a non-parole period of 2 years

66. I propose the following orders which apply in each of matters 2016/162278; 2016/218952; 2016/218978; 2016/218982:

1. Application for leave to appeal against sentence allowed.

2. Appeal allowed.

3. Quash each of the sentences imposed by Herbert DCJ on 20 April 2018 and in lieu thereof impose an aggregate sentence of 11 years imprisonment commencing on 19 July 2016 and expiring on 18 July 2027 with a non-parole period of 8 years expiring on 18 July 2024. The first day on which the applicant will be eligible to release on parole is 18 July 2024.

67. FULLERTON J: I agree with Payne JA.

68. ADAMSON J: I agree with Payne JA.

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Endnote

Decision last updated: 08 November 2019