R v R E

The Director of Public Prosecutions appeals against a sentence passed on the respondent in the District Court on 17 March 2023. At the conclusion of his trial by jury on 10 November 2022 verdicts of guilty were returned against the respondent on the following three counts:

The maximum penalty for each of the offences against s 61I (counts 1 and 4) is 14 years and the standard non-parole period is 7 years. The maximum penalty for the s 61L offence (count 3) is 5 years and there is no standard non-parole period. Those maxima were in force at that dates when the respective offences were committed.

The sentencing judge recorded the following indicative sentences:

The grounds of appeal are as follows:

The following summary of facts is taken from the sentencing judge’s remarks. Her Honour’s findings were based upon the evidence she had heard in the trial and upon a document entitled “Facts on Sentence” that had been prepared by the Crown about one week before the sentence hearing and was agreed by the respondent.

The respondent was born in 1963. When the offences in counts 1 and 3 were committed, in about 2010, he was aged approximately 46 years. He had been self-employed as a professional photographer for at least several years before that. The offence in count 1 was committed when the complainant, TM, was 17 years old. She had commenced modelling in the preceding year, at age 16. She had modelled swimsuits, lingerie and fashion items in several photo shoots with other photographers before she met the respondent. TM modelled bikinis and posed topless in several photo shoots with the respondent prior to the events of count 1. On these occasions, including the day on which the count 1 offence was committed, TM was seeking to build up her portfolio of images for the purpose of promoting herself as a model. She predominantly wanted bikini photos. Her arrangement with the respondent was that she would not pay for his work but that he was free to use the images for his own commercial purposes. TM would receive the images to add to her portfolio.

On the date to which count 1 relates the respondent and TM had arranged a shoot for the purpose of taking erotic photographs at a beach location. The respondent collected the complainant from her home in his car. On the way to the beach he stopped at an adult shop and purchased a dildo, which he told TM would be used “as a prop to the photos”. At the shoot location TM changed into lingerie and the respondent photographed her sitting in the driver seat of his car. He was on the passenger side, with the passenger door open, leaning across the passenger seat. He handed her the dildo and asked her to use it as a prop. She took it and the respondent photographed her in sexual poses with the object.

The respondent then said that she was not using the dildo properly. He took it from her with his right hand, inserted it in her vagina and “used it on her” for about 10 minutes. No photographs were taken during that time, the camera remained on the floor of the car in the passenger side footwell. The respondent then withdrew the object, the complainant dressed herself and the respondent drove her home. The sexual intercourse was constituted by the penetration of TM by an “object manipulated” by the respondent, being part of the definition of “sexual intercourse” in s 61H(1)(a)(ii) of the Crimes Act as then in force.

The offence in count 3 occurred sometime after count 1, in September 2010, when TM was aged 18 years. The respondent was then 47 years old. He invited TM to pose for publicity shots for a motocross event. The respondent again collected the complainant from her home and drove her to the location. At the conclusion of the event TM got into the front passenger seat of the respondent’s car to be driven home. She was wearing shorts and a T-shirt. While the two of them were sitting in the vehicle before departing, the respondent put one hand between her legs and touched the area over her genitals on the outside of her clothing for a few seconds. TM said, “What are you doing?”. The respondent said, “I’m sorry, I wasn’t thinking” and withdrew his hand. He then drove the complainant home without any further incident.

At the time of the offence in count 4, in October 2016, the offender was aged 53 years. He was still carrying on his business as a photographer. The complainant, JD, was aged 26 years. She had met the respondent in 2013 when she engaged him to photograph her in lingerie for the purpose of giving the images to her then fiancé. In 2014 JD arranged for the respondent to do a photo shoot on the occasion of her engagement to be married and in 2015 she hired him as the photographer at her wedding.

In about 2016 the respondent contacted JD to do an “implied nude art photo shoot for an erotica magazine”. JD agreed but said that she would only pose for “nude implied art” and that she would not do sexual acts. On an appointed day the shoot commenced in a car park for half an hour and the respondent and JD then repaired to his studio. JD agreed to the respondent giving her a massage, which lasted approximately 30 minutes, to address a sore back. The photo shoot in the studio then commenced with JD posing topless in lingerie and progressively removing her clothes but covering her breasts and genitals with props. The respondent then produced dildos and vibrators and suggested JD choose one of them as a prop, to achieve a more erotic theme.

JD said she did not wish to put a dildo inside herself and did not want her vagina exposed in the images. The respondent repeatedly told JD she looked uncomfortable and tense. He requested her, first, to use a vibrator in order to feel more comfortable and give the photographs a more authentic erotic look; then to apply lubricant and use the vibrator with that. JD said, “No, that is not what I’m here for”. She said she was uncomfortable and too “tight” to use the sex aids. The respondent then set up a video camera and said, “I want to video this and catch some stills of you because it will look more authentic”. Then he said, “You do look tight. I can fix that”. He came close to her and said, “Can I insert my finger into your vagina to see myself?” Without her having made any response he then put his finger in her vagina. She moved back in the chair she was sitting on and said, “That’s enough”. He withdrew his finger and stopped, saying, “Yes, you are tight”. He took a few more photographs before JD said she had had enough and was tired and wanted to go home. She left the studio.

In support of ground 1 the Crown takes issue with the learned judge’s treatment of two issues of fact that concern both counts 1 and 4 and one issue that concerns only count 1. In addition to the three specific matters, the Crown submits that, overall, her Honour did not assess counts 1 and 4 at the level of objective seriousness that their circumstances warranted.

The Crown’s first specific criticism concerns the respondent’s motive for having committed the acts in counts 1 and 4. The learned judge’s conclusion on motive is set out in the following passage of the remarks on sentence:

The Crown submits that the Facts on Sentence document, which was signed on behalf of the Crown and accepted by the respondent for sentencing purposes, was not intended as a complete statement of the factual basis upon which sentence was to be passed, to the exclusion of any facts not mentioned therein. The Crown submits that the document was merely an agreed summary, so far as it went. That limitation was not made clear in the document and was not articulated in the sentence proceedings. The Crown’s written submissions on sentence included par 9, as follows:

The Crown’s submissions to her Honour as a whole, including oral and written argument and the Facts on Sentence, did not seek a finding as to the respondent’s motive. It is apparent from the remarks that her Honour considered the gravity of the two sexual intercourse offences would be greater if the respondent had acted in pursuit of a sexual interest, as opposed to having made the relevant sexual contacts, without consent, in the course of trying to promote the erotic poses for the photographs. Motive may be a significant factor in determining sentence: see Tepania v R [2018] NSWCCA 247 at [112]. However, it is not apparent that the difference would be significant to objective seriousness in the present case. With either motive, the manipulation of the dildo in count 1 and the digital penetration in count 4 were non-consensual, to the respondent’s knowledge (applying the extended concepts of knowledge in s 61HA(3) of the Crimes Act as in force at the dates of the offences). Whatever motive was in the respondent’s mind, each complainant inevitably and justifiably perceived the offending acts of intercourse as invasive, offensive and distressing. They had no place in the photographic sessions during which they took place. The gravity of the acts lies in their unwanted, inherently sexual nature from the point of view of the complainants. The learned sentencing judge took all those matters into account.

Clearly from the passage of the remarks now criticised by the Crown, her Honour considered that a motive of sexual gratification would make the offending in these two counts more serious, in some degree. The effect of the passage is that her Honour did not find the aggravating feature proved beyond reasonable doubt. While that reluctance may not have been felt by the members of this Court if determining the matter at first instance, we are not able to say that her Honour was bound to find that a motive of sexual gratification was proved beyond reasonable doubt; in other words, that there was no reasonable possibility of the alternative motive that her Honour considered may have been present. It would be particularly difficult for this Court to say that the sentencing judge erred in not finding an aggravating circumstance proved beyond reasonable doubt where the judge had the advantage of hearing all of the evidence in the trial, whereas this Court does not even have the whole trial transcript, and where no submission urging a finding on motive was made by the Crown at first instance.

With respect to the respondent’s knowledge of non-consent, the Court proceeds on the basis that the jury were directed in accordance with s 61HA(3) of the Crimes Act (subsequently enacted in s 61HE(3) and more recently replaced by s 61HK(1)). The relevant part of s 61HA was in the following terms:

Her Honour’s remarks on sentence contain the following with regard to knowledge of non-consent:

In the appeal the Crown made the following submission with respect to the above passage:

It has been accepted in this Court that there may be a gradation in degrees of culpability depending upon the circumstances in which knowledge of non-consent arises, as provided for in s 61HA, and that the nature of the knowledge of non-consent in the particular case is material to objective seriousness. In Saffin v R [2020] NSWCCA 246 the offender had been found guilty at trial of six counts of aggravated sexual assault contrary to s 61J of the Crimes Act, as in force in July 2015. Section 61HA, in the terms quoted above, was applicable. Basten JA (Rothman and Price JJ agreeing) said this at [40]:

In R v Ibrahim [2021] NSWCCA 296 Dhanji J (Johnson and Lonergan JJ agreeing) said this at [48]:

In the present case, it necessarily followed from the jury’s verdicts that the respondent knew of the absence of consent, his knowledge being constituted by one or other of the circumstances provided for in s 61HA. On a fair reading of the remarks, her Honour’s decision was that she was not satisfied beyond reasonable doubt that he had actual knowledge within subs (3)(a) or that he was reckless within subs (3)(b). This Court could not conclude that her Honour was bound to find one or other of those alternatives proved to the criminal standard. In the passage quoted at [19] above her Honour was doing no more than referring, in a shorthand way, to s 61HA(3)(c). The learned judge assessed seriousness by reference to the particular circumstances of the case, having regard to the basis upon which knowledge was established. There was no error in her Honour’s approach.

In Saffin v R the offender called Dr Clifford in his sentence proceedings to give expert evidence as to his mental condition. It was argued that he had an autism spectrum disorder that could have affected his ability to register absence of consent on the part of the complainant. That evidence had not been before the jury. The sentencing judge said that he could not “conclude without doubt that the offender actually knew the victim was not consenting”. On the whole of the evidence, both at trial and on sentence, his Honour was satisfied “beyond reasonable doubt that the offender at least appreciated that there was a real possibility the victim was not consenting but persisted in the offending conduct anyway”; that is, his knowledge of non-consent was by recklessness within s 61HA(3)(b).

Basten JA dismissed an argument that the finding of recklessness was contradicted by the sentencing judge also having recognised “the possibility that the offender honestly believed the victim was consenting”. At [40] his Honour said that it was not “necessarily correct to assume that any inferences drawn by the trial judge depended entirely on the evidence called on sentence, rather than upon his knowledge of the whole case as presented at trial”. Basten JA made the following further observations:

Relying upon that paragraph, the Crown submitted that in the present case it was not open to her Honour to sentence the respondent on the basis that his knowledge of non-consent fell within the least culpable category provided for in s 61HA(3)(c) unless her Honour found, on the balance of probabilities, that the respondent had believed the complainants were consenting at the time he committed the acts. However, a difference between the present case and Saffin v R is that here no additional evidence bearing upon knowledge of non-consent was adduced in the sentence proceedings and the learned judge’s task was to find the facts on this subject from the evidence given in the trial, having due regard to the jury’s verdict. In those circumstances, if her Honour was not satisfied beyond reasonable doubt of either of the more culpable forms of knowledge of non-consent, as provided for in pars (a) and (b) of s 61HA(3), then a finding of the circumstances provided for in par (c) was the necessary default. There is no holding in Saffin v R that shows her Honour to have erred in this aspect of her decision.

In R v Ibrahim Dhanji J cautioned against “treating the [offender’s] state of mind as a separate and distinct feature of the matter adding to the gravity of the offending”. His Honour observed that the state of mind was relevant but “inextricably entwined with the circumstances of the offending more generally”. That observation could as well be made with respect to the present case. The learned sentencing judge’s approach to the respondent’s state of mind was open to her. The Crown’s close attention to the matter is out of proportion to its significance in assessing the objective gravity of counts 1 and 4.

The Court has been provided with extracts of the transcript of TM’s evidence concerning count 1. At p 109 of the transcript, she said in chief that when the respondent inserted the dildo in her vagina with his right hand, “he rubbed it on my clit”. When asked what the respondent was doing with his other hand at this time she said, “He was using it to support himself”. As mentioned above, she described the respondent leaning across the front passenger seat towards her at this time. On the second day of TM’s evidence, while still in chief, the Crown returned to the facts of count 1 at p 125 and asked whether TM could recall anything else the respondent did apart from using the dildo. She then said, “He rubbed my clitoris” but this time, when asked, “What did he use to do that?” she said he used his left hand. The prosecutor did not ask her to explain how that could have occurred if he was using his left hand to support himself or whether she wished to correct that or any other aspect of her evidence concerning his position.

In the Facts on Sentence the Crown summarised those events in the following two paragraphs:

There was a further charge of sexual intercourse on the indictment, based on the respondent having touched TM’s clitoris. The jury were directed to acquit on that count, on the basis that there was no evidence from which they could be satisfied beyond reasonable doubt that, if that occurred, it involved penetration of the genitalia as required by the definition of sexual intercourse in s 61H(1)(a). Consequently, the jury was not required to return any verdict that inherently involved a finding as to whether there was a touching of the clitoris with the respondent’s left hand, separate from the manipulation of the dildo with his right. In written submissions to the sentencing judge at par 14 the Crown put the following (emphasis added):

It is far from clear that it was intended by that submission to ask her Honour to accept TM’s second description of the touching, wherein the respondent was said to have used his left hand, rather than her earlier description, wherein the touching was by the sex aid and the respondent was merely supporting himself with his left hand. We do not consider that her Honour should have understood she was being asked to make such a finding in the absence of an explicit request and a reconciliation of such request with the terms of pars 25 and 26 of the Facts on Sentence. As an aggravating circumstance, in the absence of an implicit jury finding the matter would have to have been determined to the criminal standard. It is apparent from the record of the sentence proceedings that defence counsel did not understand the Crown to be asking her Honour to find that his client’s offence was aggravated by additional touching with his left hand. If he had so understood, there would no doubt have been submissions as to the conflict in the complainant’s evidence.

The learned judge referred to the Crown’s submission concerning the relative seriousness of count 1, measured on a hypothetical scale from low range to high range, in the following passage:

There was no error in her Honour refraining from making a finding on this matter having regard to the materials provided to her by the Crown and the manner in which the Crown conducted the proceedings on sentence. The Crown made no submission as to how the internal conflict in the complainant’s evidence should be resolved and instead incorporated in the Facts the version from p 109 of the transcript in which the touching was by the sex aid and appeared to be a mere incident of its use. Further and in any event, this appears, with respect, to be a minute aspect of the offending in count 1 that could not materially alter a judicial assessment of objective seriousness, whatever form any touching of TM’s clitoris may have taken. This detail has not warranted the attention and significance that the Crown has given it.

With respect to the relative gravity of counts 1 and 4, her Honour assessed that in each case the offending was “impulsive, spontaneous and opportunistic”; that there was “no reliable evidence that he [acted] with deliberation or forethought”; that there was no threat of violence to either complainant and no violence perpetrated or injury inflicted; that in count 1 the offending continued for about 10 minutes but in count 4 it was of very brief duration. Her Honour took into account that there was a substantial age difference between the respondent and each complainant; that there was significant psychological and emotional harm done to the complainants, in particular TM; that those effects were enduring; that “both women were offended against whilst carrying out their professional obligations as models”; that in those circumstances they were significantly vulnerable because they were “taking direction from the offender in order to capture the erotic images that both photographer and model sought” and that TM, being only 17 at the time of count 1 was “particularly vulnerable and trusting of the offender”. Given that the offending against JD in count 4 occurred approximately six years after the commission of counts 1 one and 3 against TM, her Honour considered that “the offending in each case is not an isolated incident”.

Her Honour said that the offending in count 1 was “well below the mid-range of objective seriousness” for offences under s 61I and that the circumstances of count 4 placed it “towards the lower end of the scale of objective seriousness”. While acknowledging that her Honour was not required to nominate a point at which either offence lay “along a hypothetical range”, the Crown submits that having done so, her Honour’s reasons disclose patent error. We do not accept that submission. The labels used by the judge do not have inherent meaning and do not add to an understanding of the gravity of the offending, which can only be gathered from the particulars of the case. With due respect, that is why it is generally not useful to apply range labels. It also follows from the uncertainty of concepts such as “well below the mid-range” and “towards the lower end of the scale” that is not possible to say that they disclose error. The substance of the assessment of objective seriousness, in this case as in any other, cannot be captured in one of these generalised phrases. The substance of the learned judge’s assessment of the gravity of counts 1 and 4 is to be found in her Honour’s full summation of what occurred and in her express recognition of the surrounding features, which tended in opposing directions: lack of deliberation, impulsive conduct, absence of threat or intimidation, vulnerability of the complainants, misuse of a professional occasion, lasting harm and so on.

Ground 1 is rejected. In assessing the objective seriousness of the two sexual intercourse offences her Honour made no specific error in fact finding and took into account all relevant aggravating and mitigating circumstances. That leaves for consideration whether her Honour’s decision involves a latent error in assessment of the gravity of the offending, which falls to be considered under ground 2, where manifest inadequacy is alleged.

The adequacy of both of the aggregate sentence for counts 1 and 4 and the community corrections order for count 3 is significantly affected by the respondent’s subjective case. Accordingly, grounds 2 and 3 may be considered together.

For the purposes of ground 3, the Court must take account of the sentencing judge’s findings on the seriousness of the indecent assault in count 3, which have not been referred to thus far. Her Honour found that that assault was committed in circumstances “devoid of professional context”. That contributed to her finding that the respondent had a motive of sexual interest in TM in the commission of this offence, in contrast with the position concerning counts 1 and 4. Her Honour made the following further findings:

The sentencing judge received and accepted evidence that the respondent had suffered a deprived upbringing involving a period of homelessness and abandonment when he was about seven years old, death of his father and temporary institutionalisation of his mother when he was 12 and physical abuse by a stepfather from the age of 15. Despite this adversity there were no material infringements of the law recorded against him up to the first of these offences, when he was 46, and nothing since then up to the age of 59 when sentence was passed. Her Honour received supportive oral evidence from the respondent’s sister and impressive testimonials from 13 other members of his community, several of them clients of the photography business. Her Honour concluded as follows:

As the charges had been defended, her Honour noted that the respondent had not demonstrated remorse or acceptance of responsibility. It was also found that these circumstances precluded a positive finding about rehabilitation. However, the learned judge assessed the respondent as “highly unlikely to reoffend”.

The evidence on sentence showed that the respondent had been diagnosed with throat cancer in May 2021, nearly 2 years after he was charged with these offences. He was initially treated with chemotherapy as an outpatient. Significant side-effects required his admission to hospital in late June 2021 for continuation of the treatment. By late July 2021 the respondent had suffered substantial weight loss and was experiencing ringing in his ears, indicating ototoxicity, or ear poisoning, which is a known side effect of chemotherapy. It became necessary to suspend that course of treatment and to switch to radiotherapy. During the respondent’s treatment for throat cancer, scans revealed the development of gastric lymphoma. Administration of cytotoxic medication to control the lymphoma commenced either in late 2021 or in 2022 and continued to completion at the end of October 2022, while the respondent was on trial.

Upon initial assessment when he was remanded in custody on 10 November 2022, the respondent informed a Justice Health nurse of the above history. He reported continuation of “tinnitus-like symptoms” and inability to open his jaw wide. He told the nurse that, prior to being incarcerated, he had been due to make an appointment for follow-up concerning the gastric lymphoma and for a PET scan – a form of imaging to ascertain the metabolic functioning of organs and tissues – to determine whether the disease had been controlled. The respondent was asked by the Justice Health nurse to sign authorities for the release of his medical records from the hospital and medical centre where had been treated, and he did so. The nurse spoke to a medical officer about the respondent the same day but three weeks later, on 4 December 2022, it was recorded that the matter had progressed no further than “semi urg waitlist made for GP”.

On 14 December 2022 the respondent was seen by a Justice Health medical officer who recorded the following:

The respondent’s sister gave evidence that the only treatment the respondent had received in custody was “sporadic” issue of Panadol. She told the sentencing judge that since entering the prison system he reported that he had been unable to chew because of jaw pain and that the sensation of ringing in his ears, from the ototoxicity, was causing him headaches.

The Crown tendered to her Honour a document entitled “Overview of Services” issued by Justice Health and Forensic Mental Health Network, which included the following:

On the basis of this the Crown submitted to her Honour that the medical services of Justice Health are commensurate with those available in the wider community and that it would therefore not be justified to impose a lesser sentence or to find special circumstances on the basis of the respondent’s health issues. Her Honour rejected that submission, stating as follows:

Her Honour was justified in these conclusions. The evidence showed that the respondent’s medical care had been neglected and that Justice Health’s claims in its brochure could not be taken at face value. This is not the first time that assertions by Justice Health concerning its capacity to provide healthcare for inmates have been presented to a sentencing judge but have been shown to be gravely unreliable: see Brierley v R [2022] NSWCCA 26. The really serious circumstance proved by uncontested medical records in the respondent’s case was that his clinical management had been interrupted by imprisonment at a critical stage, when a course of treatment for a diagnosed progressive disease had been undertaken and follow-up with a PET scan and endoscopy was necessary in order to ascertain whether further treatment would be needed. It would be obvious to anyone that the follow-up was time-critical. The notation of Justice Health personnel, on the day of his admission to prison, was “Priority semi urgent”. On the face of the material before the sentencing judge a delay of more than 4 months without those procedures having been conducted, or even an appointment made with an external provider, was medically neglectful. It would not be going too far to say that it was inhumane to keep a prison inmate, in the respondent’s state of health, under suspense for over 4 months, not knowing whether his condition may be deteriorating, not knowing whether the further testing that he requires will be provided or, if so, when.

Her Honour’s remarks include the following reasons for moderation of penalty:

The sentence imposed for counts 1 and 4 is undoubtedly lenient and the fixing of the non-parole period at 40% of the head sentence, on account of special circumstances, is undoubtedly generous. In our view having regard to all considerations so carefully assessed by her Honour, as canvassed in these reasons, the sentence is not manifestly inadequate. Ground 2 is rejected. The community corrections order for count 3 was within the legitimate exercise of the learned judge’s sentencing discretion. Ground 3 is also rejected.

The Court’s residual discretion not to intervene is not engaged. Affidavits were filed in the appeal, to be taken into account on the exercise of that discretion and/or on resentence, if either of those matters should arise. Those affidavits show that, at the date of the appeal hearing on 14 July 2023, eight months after his admission to prison, Justice Health still has not caused the respondent to be examined by endoscopy and PET scan. The respondent’s own affidavit and Justice Health records show that he has pursued his request for those procedures on, at least, 14 February 2023, 24 May 2023 and 20 June 2023. In response to a request for information by the Office of the Director of Public Prosecutions, a Legal Advisor of Justice Health wrote as follows on 6 July 2023:

This does not inform the respondent – or the Court – whether the appointment that has been made is for the endoscopy and scan actually to be carried out, or only for initial consultation. The letter does not provide even a range within which the appointment will take place. The respondent is not to know from this whether it is days, weeks or months away. If the tests are not to be performed at this appointment, there is no information as to how much longer he will have to wait until they are. This letter continues the uncertainty and anxiety with respect to the progress of his illness that the respondent has endured since 11 November 2022. He has had to undergo the stress of a Crown appeal to obtain even this scant information from Justice Health, through an affidavit filed by the Director.

It is understandable from a prison security point of view that in many cases advance notice should not be given of the date upon which an inmate may be escorted from a correctional centre to an external hospital. In the case of an inmate such as this respondent it is difficult to see how there could be any significant security issue. Having regard to the inordinate delay in affording him clinical care, it could reasonably be expected that Justice Health would consult with the Governor of the relevant correctional facility to release meaningful information about the date and nature of the “upcoming” appointment, both in the interests of the respondent’s welfare and to enable the Director of Public Prosecutions and the Court to discharge their respective duties.

Had the Court taken a different view of the adequacy of the sentence, it would inevitably have exercised its discretion not to increase it in view of the further four months of delay in provision of essential and urgent medical attention since the respondent was before the District Court. The Court does not know whether Justice Health was informed of those parts of the learned sentencing judge’s remarks on sentence that address the respondent’s medical situation. If not, the Director of Public Prosecutions should now provide to the Chief Executive of Justice Health her Honour’s remarks and the relevant parts of this judgment.

The order of the Court is: Appeal dismissed.