Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Croxon v R [2017] NSWCCA 213 Hearing dates: 28 August 2017 Date of orders: 06 September 2017 Decision date: 06 September 2017 Before: Hoeben CJ at CL at [1] Davies J at [2] Bellew J at [3] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentences imposed by Acting Judge Delaney in the District Court on 19 August 2016 are set aside. (4) In lieu thereof, the applicant is sentenced as follows: (i) in respect of count 1, a non-parole period of 2 years imprisonment to date from 26 February 2015 and to expire on 25 February 2017, with an additional term of 8 months imprisonment to expire on 25 October 2017; (ii) in respect of count 2, a non-parole period of 4 years imprisonment to date from 26 August 2015 and to expire on 25 August 2019, with an additional term of 1 year and 5 months imprisonment to expire on 25 January 2021. (5) The applicant will be eligible for release on parole on 25 August 2019. Catchwords: CRIMINAL LAW – Appeal – Appeal against sentence – Where applicant pleaded guilty to two counts of sexual offending committed on a pupil whilst he was a school teacher – Where sentencing judge wholly accumulated the two sentences – Where the aggregate sentence imposed reflected a failure on the part of the sentencing judge to have proper regard to considerations of totality – Sentence manifestly excessive – Applicant re-sentenced PRACTICE AND PROCEDURE – Criminal law – Observations as to the inappropriate use of a Form 1 by the Crown Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: AG v R [2016] NSWCCA 102 Cahyadi v R [2007] NSWCCA 1 DG v R [2017] NSWCCA 139 Doe v R [2013] NSWCCA 248 Ewen v R [2015] NSWCCA 117 FB v R [2014] NSWCCA 282 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Kertai v R [2013] NSWCCA 252 MLP v R [2014] NSWCCA 183 R v AJP [2004] NSWCCA 434 R v Egan [2016] NSWCCA 285 R v Gavel [2014] NSWCCA 56 R v Holder (1983) 3 NSWLR 245 R v MNK [2006] NSWCCA 272 R v King [2009] NSWCCA 117 Category: Principal judgment Parties: David Reginald Croxon – Applicant Regina – Respondent Representation: Counsel: S Kluss – Applicant E Balodis – Respondent Solicitors: SJT Law – Applicant C Hyland, Solicitor for Public Prosecutions – Respondent File Number(s): 2015/61282 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 19 August 2016 Before: Acting Judge Delaney Judgment 1. HOEBEN CJ AT CL: I agree with Bellew J. 2. DAVIES J: I agree with Bellew J. 3. BELLEW J: On 21 March 2016 an indictment was presented against David Reginald Croxon ("the applicant") containing the following counts: 1. On 12 December 2014, at Nowra in the State of New South Wales, did assault (LS) and at the time of such assault committed an act of indecency on (LS), a person then being under the age of sixteen years, namely fifteen years (count 1); 2. On 26 February 2015, at Nowra in the State of New South Wales, did have sexual intercourse with (LS) without the consent of (LS) knowing she was not consenting, in circumstances of aggravation, namely, that (LS) was a person then being under the age of sixteen years, namely fifteen years (count 2). 1. The applicant pleaded guilty to each of those counts. In addition, he asked the sentencing judge to take into account two further matters on a Form 1, namely: 1. an offence of assault with an act of indecency upon a person under the age of 16 years; and 2. an offence of having sexual intercourse without consent with a person under the age of 16 years. 1. The offending in count 1 carried a maximum penalty of 10 years imprisonment with a standard non-parole period of 8 years. The offending in count 2 carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. The same respective penalties applied to the matters in (i) and (ii) on the Form 1. 2. On 19 August 2016 Acting Judge Delaney expressed indicative sentences as follows: 1. in respect of count 1, imprisonment for 3 years 6 months with a non-parole period of 2 years; 2. in respect of count 2, imprisonment for 8 years with a non-parole period of 5 years. 1. His Honour then imposed an aggregate sentence of 11 years and 9 months imprisonment, with a non-parole period of 7 years. 2. On 9 September 2016, with the consent of the parties, his Honour corrected the sentence pursuant to s. 43 of the Criminal Procedure Act 1986 (NSW) on the basis that he had "been informed that the sentences that (he) imposed offended one of the sections of the Act". He varied the total sentence from one of 11 years 9 months imprisonment to one of 11 years 5 months imprisonment. The non-parole period of 7 years was not varied. 3. The applicant now seeks leave to appeal against the sentence on the grounds more fully set out below. However before considering the issues raised by those grounds, I wish to make some observations regarding the Crown's use of the Form 1 in this case. 4. The second matter on the Form 1 was an offence contrary to s. 61J(1) of the Crimes Act 1900 (NSW). It alleged that the applicant had sexual intercourse with LS without her consent in circumstances of aggravation, namely that LS was under the age of 16 years. That was the same offence as that in count 2 of the indictment. It carried a maximum penalty of 20 years imprisonment, and a standard non-parole period of 10 years. 5. The Crown was unable to explain how the inclusion of such a serious offence on a Form 1 had eventuated. He suggested that it may have been the result of plea negotiations which had taken place immediately before the commencement of the applicant's trial. In fairness, it should be pointed out that the Crown before this Court did not appear in the sentence proceedings. 6. In my view, the inclusion of such a serious matter on a Form 1 was an entirely inappropriate use of the procedure for which provision is made in ss. 32-33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is a matter of some concern that this is the second occasion within the space of a little more than two months on which this Court has had to express that view. In DG v R [2017] NSWCCA 139 Hoeben CJ at CL (with the agreement of Garling J and myself) observed (at [43]-[44]) that the inclusion of serious offences on a Form 1 in that case involved a distortion of ss. 32-33 of the CPA, and resulted in the sentencing task being made considerably more difficult. 7. In my view, the inclusion of the second matter on the Form 1 in this case resulted in a similar distortion. It is to be hoped that the Director of Public Prosecutions takes these observations into account when deciding what matters are appropriately included on a Form 1 in any case in the future. THE FACTS 1. An agreed statement of facts was tendered before the sentencing judge, on the basis of which his Honour found the facts of the offending to be as follows: In 2014 and early 2015 the offender was a teacher at Shoal Haven high school. He had been a careers adviser there since 2004 but was a qualified teacher holding the necessary tertiary qualifications. At the time of these offences he was 41 years old having been born on 7 December 1973. The complainant LS was a student at the school in year 9 in 2014 and then in year 10 in 2015. At the time of these offences she was 15 years of age. She was a student of the school and the offender was one of her teachers. On Friday 12 December 2014, which was her last day at school for the year LS went to see the offender for the purpose of having him assist her in compiling her resume which was one of his roles as a teacher in careers advising. She was hoping to find a job during the summer school holidays. The complainant asked the offender for some toast, I am told that as a special treat the offender would often make his students toast. The offender told her to wait until the teachers were all out of the kitchen, which is part of the staff room, and then he invited her in, put the toast on and shut the staff room door. Taking students into the staff room was not permitted. There was a sign outside the kitchen area of the staff room that said "no students allowed, staff only". The offender had previously been told not to close the door when alone with a student. When the toast had been cooked and the complainant was buttering it the offender came up behind her and put his hand around on her breasts grabbing and squeezing. The complainant told police that she was shocked and asked, "What are you doing?" and he said, "Is it okay?" And she said "What?" And he said "For me to do this" and the complainant said she just could not say outright "no", she was scared and did not know what might happen if she said "no", so she reluctantly said "yeah". He then put his hand down her shirt and bra and touched her naked breasts, this is the matter on the Form 1, number 1. The offender then put his hand down her shorts, which were part of her school uniform and on the outside of her underpants over her genital area and rubbed. When he went to put his hand down a second time she said "No, no, let me just do the toast". This event was count 1 in the indictment. During these acts the offender kept going backwards and forwards to the door to look in case someone was coming. The complainant saw that the offender had an erection during these acts. After the complainant told him "no", he then went and opened the door and said to the complainant "I swear to God if you tell anyone I'll kill myself, I'll lose my kids and stuff, my house". The offender asked the complainant to return next period and he gave her a note to say the complainant would be with him the next period as well but the complainant said she had to go to English and did not return. During the preparation of the resume the offender created an email account for the complainant to include on it. He subsequently told her that he had tried emailing her but she told him that she had forgotten her password. Police subsequently accessed that email account and found an unread email sent from an address listed as "DAVE SXY" with "Hey" on 17 December 2014 and it said "Hey it's Dave you did something naughty with last Friday". School holidays then commenced and the complainant told her friend JL on the third day of the holidays when J was over at the complainant's house what the offender had done to her on the last day of school. She was scared and she said to J "you can't tell anyone, I don't want anyone to find out about this". During the holidays the offender rang the complainant on her mobile phone, she had not given him her mobile number but he had obtained it from her resume. He asked her if it was okay and said "yea" and he said "Oh I'm just wondering if you're all right from the last day at school?" And the complainant said "yeah I guess, why?" He asked if there was anyone around and the complainant said "yeah" and so he said he would let her go. The second matter on the indictment which also attracts a Form 1 matter occurred on 26 February 2015. The complainant had a physical activity in sports studies class, before she got changed into her spots gear the offender approached her and said he had to talk to her. She told him to ask the PASS teacher as it was quite common for the offender to take students out of classes for career advising purposes the teacher of the PASS allowed it. The complainant went with the offender to classroom A3 and sat down at a desk near the back of the classroom because it was close to the exit door. She told the police that she was freaking out and felt sick and very anxious. The offender moved his chair closer towards her and said that he had seen her sister who he had taught also previously at Albion Park Rail and had discovered her sister was living at Albion Park. He suggested that the complainant go and stay at her sister's that weekend and get her sister to drop her at Shell Harbour Square and then she was to find his car at the K-Mart car park and they would go somewhere. The complainant told him she could not as she had to work, this was a lie as she did not have a job at this stage. The offender wrote his gmail account in the note section of the complainant's iPhone. Police subsequently found the entry on her phone created at 1.12pm on 26 February 2015. The offender then suggested that the following afternoon they could go driving somewhere as he was not car-pooling that day with his colleague. The offender then put his hand on the complainant's knee and then reached under her school uniform, which was a dress, and under the side of her underpants, through to her naked genitals and first touched her clitoris and then inserted his finger into her vagina. The offender said to the complainant "I know this is wrong but I just want a taste". He got up to close the classroom door and the complainant said "No don't". The offender then told her to go a bit further down into the classroom away from the door and again he put his hand up her dress into her underpants onto her clitoris and inserted a finger into her vagina, that is Form 1 number 2. The offender then got up and what the complainant could see was an erection and she saw ejaculate on the front of his pants. The offender asked her to come back next period to which the complainant said "I can't I've got a test". She asked him for a note to explain her absence which he gave her. The complainant then left and went straight to the class that her friend JL was in and got permission from J's teacher to speak with J, they left the class and the complainant told her what the offender had just done. She was crying and shaking and said to J "I'm so scared I don't know what to do", J said "Come on you need to go and tell someone now" and they went to the Deputy Principal's office. The Deputy Principal asked the complainant what was wrong, she was sobbing and gulping for breath and said "No one will believe me". The Deputy Principal suggested that J speak for her but the complainant managed to tell her some things and wrong down what she said on an incident report sheet and wrote down the rest of what happened. She also showed the Deputy Principal her phone where the offender had just entered his email address. The complainant also gave the Deputy Principal the note that the offender had just written for her, "LS seeing me, back 1.30 DC". The Deputy Principal rang the complainant's parents who came to the school and met both the Deputy Principal and the Principal who then contacted the police and the matter was formally reported. The complainant said that she did not tell anyone except JL because she was scared, the offender told her the two girls who he described as 'nutbags' had gone to the police saying that he had tried to touch them up, but the police did not believe them. The complainant thought that if they did not believe those girls why would they believe her. She also did not want the whole school finding out because he was well known, well liked, because he was more like a kid who would joke with and talk to her about whatever. The only reason she ultimately came forward on the second occasion was because J convinced her to report it. The complainant was interviewed by police on 26 February 2015. At about thirty minutes past midnight the police executed a search warrant of the offender's home, arrested him, seized his mobile phone and other items and ultimately he participated in an interview in which he denied that anything untoward had happened. He was then charged with these offences. The police facts include paragraph 34 which states: "The first time the offender indicated a willingness to plead to two of the offences, with the other two on a Form 1 was on the morning of his trial on 21 March 2016." The matters on the Form 1 schedule were 12 December 2014, assault and commit act of indecency towards person under the age of 16 years and 26 February 2015 sexual intercourse without consent person under the age of 16 years. The applicant's subjective case 1. His Honour noted (at ROS 6) that the applicant was 42 years of age at the time of sentence. He described the applicant's upbringing as "unremarkable, certainly not dysfunctional, but more likely stable" (at ROS 6). The applicant had been married for 9 years and had 2 children, aged 3 years and 6 years respectively. His marriage had ended following his incarceration for these offences. 2. The applicant completed Year 12 before undertaking a Bachelor of Economics, a Graduate Diploma in Education, and a Graduate Certificate in Careers. He had been continuously employed as a school teacher for approximately 17 years and at the time of the offending had been employed at the same school for approximately 11 years. His Honour noted that the applicant had been working at that school as a careers advisor and had been well respected by the school community. 3. The applicant had no criminal history. A report of Professor Greenberg which was tendered before the sentencing judge diagnosed the applicant as suffering from an adjustment disorder with depressed mood (in remission) and "personality problems". Having recounted aspects of the applicant's personal history, Professor Greenberg said (at p. 6 of his report): He admits he was sexually attracted to the 15 year old female victim. He has some cognitive distortions with regard to his offending behaviour but reports that he has felt guilty about his inappropriate sexual behaviour with this under aged girl. Although it is difficult to judge remorse, he expressed remorse with regard to his offending behaviour. I have not undertaken a comprehensive sexual offending risk assessment and risk management assessment of the offender, which will need to be completed at the appropriate time. However, he expresses a desire to attend any sexual offender treatment program whilst he is (sic) custody. In my view, he would have prospects for rehabilitation based on his desire to seek such treatment and comply with treatment recommendations by the custodial services. (The applicant) reports that after he was incarcerated he became depressed. Clinically, he had an episode of depression which was treated with antidepressant medication by the mental health staff provided by Justice Health. He continues to take Sertraline, anti-depressant medication and reports that he currently has no significant symptoms of depression. 1. A pre-sentence report was also before the sentencing judge. In terms of the applicant's background, the report was generally consistent with that of Professor Greenberg. In addressing the applicant's attitude to his offending, the author of the report stated: When discussing the current matters before the court the offender's version of events were (sic) consistent with the Police Facts. He appeared to justify his offending behaviour, indicating that the victim consented and 'enjoyed it'. He also indicated that prior to the offence the victim 'would come down and flirt with me'. He stated that the victim 'initially put my hand down her pants' and he 'did not know she was freaking out at the time'. Nevertheless, he acknowledged that his actions were morally and legally wrong and stated 'I should not have done it'. He stated that he did not blame the victim and indicated that he 'screwed her over'. He indicated he was 'sorry' and that he wrote an apology letter to the victim. (The applicant) also stated that the only reason he contacted the victim after the incident occurred was to 'check on her welfare'. The offender was able to display insight into how his actions may have impacted the community as a whole, stating that they would be 'disgusted'. 1. The applicant was assessed as being at a low risk of further sexual offending. It was considered that he would benefit from a period of supervision by Community Corrections, and that appropriate case management strategies would include referral to a psychologist for such further assessment and intervention as may be deemed necessary. 2. Having reviewed these subjective matters, the sentencing judge said (at ROS 10) : Accordingly it may be seen that prior to committing these offences the offender was a person who had been able to obtain a very appropriate level of education and obtained his employment with the Department and indeed through his good character had been able to obtain a position of authority which was the position of authority which he used to commit these offences. GROUND 1 - His Honour erred in accumulating the sentences The reasons of the sentencing Judge 1. The sentencing Judge said at (ROS 18): Accordingly the indicative sentences that I propose after taking into account the 10% deduction are as follows: for s 61 M(2) the sentence that I propose to impose is three years, six months with a non-parole period of two years; for the s 61 J(1) I propose to impose a sentence of eight years imprisonment with a non-parole period of five years. The aggregate sentence will be a head sentence of 11 years and nine months with a non-parole period of six years. 1. A short time later (at ROS 19) his Honour clarified that the stated non-parole period of six years was in fact an error, and that he had intended to impose a non-parole period of 7 years. Submissions of the applicant 1. Whilst accepting that questions of accumulation are discretionary matters for a sentencing judge, and whilst also accepting that some degree of accumulation between the two sentences was appropriate in the present case, counsel for the applicant submitted that the total accumulation of the indicative sentences reflected a miscarriage of the sentencing discretion. 2. It was further submitted that in essence, the applicant was to be sentenced in respect of two events in relation to one complainant who was "close to the upper limit of the age range envisaged by the offence". It was submitted that the sentence imposed by his Honour was disproportionate to the offending, and amounted to a crushing sentence, in the sense that it would leave the applicant with a sense of hopelessness, and destroy any expectation he might have of a useful life following his release from custody. Submissions of the Crown 1. The Crown submitted that rather than considering the degree of "notional accumulation", the principal focus of this Court's attention should be upon ground 3 which asserted that the sentence is manifestly excessive. To the extent that ground 1 complained of the degree of actual accumulation imposed, it was submitted that the first and second incidents of offending were separated by a significant period of time, leading the sentencing judge to correctly describe them as two discrete offences. It was submitted that in these circumstances, notional accumulation was inevitable. Consideration 1. In the present case the sentencing judge totally accumulated the two indicative sentences into an aggregate sentence. That was not, as the Crown described it, "notional accumulation". 2. Questions of accumulation and concurrence are, generally speaking, matters for determination by a sentencing judge in the exercise of his or her discretion. In Cahyadi v R [2007] NSWCCA 1 Howie J said (at [27]): [27] … there 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 of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. 1. The application of the totality principle will necessarily have a bearing upon the extent to which sentences are to be served concurrently or accumulatively: Cahyadi at [28] per Howie J citing R v MMK [2006] NSWCCA 272. In R v Holder (1983) 3 NSWLR 245 Street CJ said (at 260): …The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight­forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences… 1. In the present case, the sentencing judge failed to conduct the evaluation of which Street CJ spoke. Whilst the two incidents which were the subject of counts 1 and 2 were separated in time, the total accumulation of the two sentences failed to have any regard to principles of totality. In these circumstances, ground 1 is made out. 2. Error having been found, it is necessary for this Court to exercise its sentencing discretion afresh: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37. Although in these circumstances it is not strictly necessary to consider ground 2, I should do so in light of the fact that the Court heard full argument in relation to it. GROUND 2 - His Honour erred in assessing the objective criminality of the offences as being in the "mid-range" The proceedings before the sentencing judge 1. In written submissions provided to the sentencing judge, and having cited a number of sentencing principles, the applicant's then representative stated the following (at [70](a)-(b)): In view of the forgoing (sic) observations as to law and taking into account the principles set out, the following is submitted: a. objectively, the offences fall within the mid-range of offences of this kind; b. the starting point with regard to each sentence should be considered in view of the mid-range of objective seriousness. 1. The sentencing judge assessed the objective criminality of the offending as follows (commencing at ROS 15): The first of the offences here was under s 61 M(2) which at the time of offending had a maximum penalty of ten years with a standard non-parole period of eight. In considering the criminality of that offence I am required to consider the actual character of the assault including the degree of physical contact involved, the degree of genital connection and/or gross indecency and the age differences between the participants (sic) also important as is the duration of conduct and the degree of coercion. Here the offender was in authority and although there was an absence of threats there was clearly coercion based on the different levels of authority. How then is the court to approach the criminality of the first offence?. Noting the objective matters to which I have just referred and referring back to the comments that I made in relation to the Crown's submissions I accept the Crown's submissions that the offence of aggravated indecent assault under s 61 M(2) in this case is a very serious example of the offending of that type and that when one looks at the objective criminality of it, the following factors inform the question of how serious it was, namely the relationship between the two, the age difference, that is 41 to age 15, the actual conduct where the offender placed his hands down the complainant's school shorts onto her genitals which he rubbed. He would have done this a second time had the complainant not said "no". The criminal conduct was behind a closed door in the staff room. He then coerced her into silence by threatening he would kill himself but then asked her to return the next period and gave her a note to do so. Not surprisingly the complainant declined. The duration of the offence was sufficiently long for the offender to gain an erection. I accept that this offence was in the middle range of seriousness for this type of offence. For the second matter of aggravated indecent assault I accept the submission by the Crown that when taking into account the objective criminality, the nature of the intercourse is not determinative, but whilst there has been a discussion in the Higher Courts about the different forms of penetration, never the less in R v Hibberd the Court said at paragraph 21: "In my respectful view the time has come for this court to depart from any prima facie assumption let alone general proposition that digital sexual intercourse is to be regarded as generally less serious than penile/sexual intercourse. If one was to accept such a proposition then it may well be appropriate to also assert that forced vaginal penetration in some of its more gross forms is likely to be more serious than penile penetration." In this case there was clear planning, there was an orchestrated arrangement to have the victim come to his class and that he used his position to coerce the victim to come and be with him on that particular day. I reject any suggestion that might be inferred from any of the documents that there was any 'so called' consent or acceptance of this behaviour. I consider that in view of those matters, which taken with the facts that I have referred to in the first matter, the level of offending for the aggravated sexual assault which was not only serious because of the act that he undertook with the digital penetration, that he told the complainant to go a bit further down the class room and taking into account the Form 1 matter there this is a very serious example and again mid-range of objective seriousness. Submissions of the applicant 1. Whilst accepting that the offending was serious, and that it involved a significant abuse of a position of trust, counsel for the applicant submitted that the offending nevertheless fell below the mid-range of objective seriousness in each case because: 1. the events were "relatively short" in duration; 2. the respective episodes of offending were separated by a significant period of time; 3. the offending was constituted, in each case, by "manual touching", as opposed to penile/vaginal penetration; 4. the victim was 15 years of age, and thus at the upper end of the relevant age bracket; 5. the offences were not accompanied by threats of violence, or the commission of actual violence, and did not include the use of alcohol or drugs; and 6. the offending did not entail any act(s) of grooming. 1. In addition, counsel submitted that the applicant had presented a "strong subjective case". Submissions of the Crown 1. The Crown submitted that the assessment of objective seriousness of particular offending is a matter within the discretion of the sentencing judge, and that such findings are of a kind with which this Court will be slow to interfere. In response to the matters relied upon by counsel for the applicant, the Crown submitted that: 1. the applicant's abuse of his position of trust was a significant aggravating factor; 2. the short duration of the offending was not a factor which reduced its objective seriousness; 3. the fact that there was a break in time between the two incidents did not reduce the objective seriousness of either; 4. the nature of the sexual intercourse (categorised by counsel for the applicant as "manual touching") was not determinative of the objective seriousness of the offending in count 2, and that it was necessary to consider all relevant circumstances surrounding such offending; 5. the applicant had displayed behaviour in the nature of "grooming"; 6. the applicant had threatened the victim that if she complained he would kill himself; and 7. the applicant had also told the victim that two other girls had complained that he had tried to molest them but they had not been believed. 1. The Crown submitted that in all of those circumstances, the conclusion reached by the sentencing judge that the offending fell within the mid-range did not reflect error. The Crown also emphasised that the written submissions relied upon by the applicant's then representative before the sentencing judge included an express concession that the offending was appropriately categorised as falling within the mid-range. It was submitted that in these circumstances, it was not open to the applicant to now seek to resile from that concession. Consideration 1. In dealing with this ground it is necessary to make a number of observations regarding some of the matters relied upon by counsel for the applicant. 2. Firstly, and although not entirely irrelevant, the fact that each episode of offending may have been relatively short in time is of limited significance. This Court has observed on many occasions that offending of this nature is capable of having a profound and deleterious effect upon victims for many years, if not for the whole of their lives: R v Gavel [2014] NSWCCA 56 at [110] per the Court (Leeming JA, Johnson and Hall JJ)) and the authorities cited therein; MLP v R [2014] NSWCCA 183 at [31] per Bellew J (Macfarlan JA and Adamson J agreeing); R v Egan [2016] NSWCCA 285 at [143]-[147] per Bellew J (Macfarlan JA and Hall J agreeing). The fact that some of those observations were made in the context of younger victims does not mean that the effects of the offending on the present victim were any less profound, or any less deleterious. 3. Secondly, the fact that the offending did not involve penile/vaginal penetration is also of limited significance. The particular type of forced intercourse is not determinative of the objective seriousness of this kind of offending. The creation of some form of hierarchy in that regard is neither possible nor appropriate: Doe v R [2013] NSWCCA 248 at [48] per Bellew J (Hoeben CJ at CL and Johnson J agreeing) citing R v AJP [2004] NSWCCA 434 at [24]; Kertai v R [2013] NSWCCA 252 at [36] per Hoeben CJ at CL (Johnson and Bellew JJ agreeing) citing R v King [2009] NSWCCA 117 at [35]-[36]. 4. Thirdly, the reliance by counsel for the applicant upon what was said to be the applicant's "strong subjective case" was misplaced. Subjective considerations play no part in the assessment of the objective seriousness of offending. 5. The circumstances of the offending are fully set out in the remarks of the sentencing judge. Its seriousness, and the fact that it involved a gross breach of trust, will be self-evident. However, contrary to the submission of the Crown, I am not satisfied that there was any evidence that the applicant had "groomed" the victim in the accepted sense, nor was the offending categorised by threats of violence of the use of alcohol or drugs. In all of the circumstances I would, like the sentencing judge, place each of the offences in the mid-range, albeit towards the lower end of that range. 6. It follows that this ground is not made out. RE-SENTENCE 1. Given the error found in respect of ground 1, it is not necessary to consider ground 3 which asserts that the sentence was manifestly excessive. 2. Counsel for the applicant drew the court's attention to the decisions of this Court in FB v R [2014] NSWCCA 282, AG v R [2016] NSWCCA 102 and Ewen v R [2015] NSWCCA 117 all of which, it was submitted, involved offending of far greater objective criminality than that of the applicant. It was submitted that a comparison of the present case with each of those three cases supported the conclusion that some lesser sentence was warranted. 3. General deterrence, denunciation, and the protection of the community, are all relevant factors on re-sentence. The gross breach of trust in which the applicant engaged in committing the offences cannot be understated. Moreover, the first incident was accompanied by a threat by the applicant to the victim that he would kill himself in the event that the victim reported what had occurred. All of that said, I am unable to accept the submission of the Crown that there was little of significance in the applicant's subjective case. This is so for a number of reasons. 4. Firstly, the applicant is a person of prior good character and is entitled to have that taken into account in his favour. 5. Secondly, he has been assessed at presenting at a low risk of sexual re-offending. That supports a conclusion that his prospects of rehabilitation are favourable. 6. Thirdly, and notwithstanding the reference in the pre-sentence report to an attempt to justify his behaviour, there is evidence of the applicant having expressed his remorse to the victim of his offending. He told Professor Greenberg that he had felt "guilty and horrible" and acknowledged that he had abused his position of trust. He apologised to the victim in writing and accepted that he was required to be punished by the law. In all of these circumstances, I am satisfied that the applicant is remorseful. 7. I have also had regard to the three authorities to which the court was referred by counsel for the applicant. Whilst the sentencing judge found special circumstances, in my view there is no evidentiary basis upon which to do so. The applicant is entitled to a 10% discount to reflect his pleas of guilty. 8. I have regard to the principles of totality and have also taken into account the contents of an affidavit of the applicant which was relied upon for the purposes of re-sentence. That affidavit discloses that the applicant has been the subject of two serious assaults in custody, as a consequence of which he has been placed on limited association with other inmates. That, in turn, has resulted in the applicant not being able to undertake any work or study whilst serving his sentence. ORDERS 1. For the reasons given, I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentences imposed by Acting Judge Delaney in the District Court on 19 August 2016 are set aside. 4. In lieu thereof, and having regard to the offences on the Form 1, the applicant is sentenced as follows: 1. in respect of count 1, a non-parole period of 2 years imprisonment to date from 26 February 2015 and to expire on 25 February 2017, with an additional term of 8 months imprisonment to expire on 25 October 2017; 2. in respect of count 2, a non-parole period of 4 years imprisonment to date from 26 August 2015 and to expire on 25 August 2019, with an additional term of 1 year and 5 months imprisonment to expire on 25 January 2021. 1. The total non-parole period is one of 4 years and 6 months imprisonment and the additional term is one of 1 year and 5 months imprisonment. 2. The applicant will be eligible for release on parole on 25 August 2019. ********** Amendments 14 June 2018 - Order 4(ii) amended to read "25 January 2021" on cover sheet and para. [51]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2018