Smith v R

1. [1]

   JOHNSON J: At the conclusion of the hearing on 3 February 2022, I joined in the making of orders allowing the appeal and resentencing the Applicant. My reasons for joining in the making of those orders are those contained in the judgment of Fagan J which I have had the privilege to read.

2. [2]

   HARRISON J: I agree with Fagan J.

3. [3]

   FAGAN J: This is an application for leave to appeal against an aggregate sentence imposed in the District Court on 4 September 2020. The offending for which the applicant was before the Court was of a sexual nature, committed when she was a high school physical education teacher aged 26 years, against a male teenage pupil of 14-15. The applicant pleaded guilty in the Local Court to the following charges:

4. [4]

   Each of the indecent assault in Sequence 8 and the sexual touching in Sequence 10 was accompanied by kissing which was additionally charged. The additional charge in each case was placed on a Form 1. Thus, on sentence for Sequence 8 there was taken into account an additional instance of indecent assault, being Sequence 6. On sentence for Sequence 10 a further charge of sexual touching, Sequence 11, was likewise taken into account.

5. [5]

   The aggregate sentence imposed by the sentencing judge was a term of 3 years and 10 months commencing on 4 September 2020 and expiring on 3 July 2024, with a non-parole period of 2 years and 3 months. Under that sentence the applicant would be first eligible to be considered for release on parole on 3 December 2022. Her Honour nominated the following indicative sentences:

6. [6]

   The applicant’s grounds of appeal are:

7. [7]

   At the conclusion of the hearing on 3 February 2022 the Court made the following orders:

8. [8]

   When the above orders were pronounced the Court’s reasons were reserved. I joined in making the orders on the basis that I considered the sentence was manifestly excessive and that ground 3 should be upheld. I now set out the circumstances of the case, upon which my view in respect of ground 3 was formed. Consideration of grounds 1 and 2 will follow.

Facts

1. [9]

   The following summary is taken from an agreed statement of facts that was before the sentencing judge and from her Honour’s Remarks. The names of people and places and some other details are omitted in order to protect the identity of the young person against whom the offences were committed.

2. [10]

   In late 2018 and early 2019 the applicant had held her position as a physical education teacher at a public high school for six years. The victim was a student at the school aged 14 years and approaching 15 when the offending commenced. He was aged 15 when Sequence 10 was committed in January 2019. The applicant never taught the victim. She was aware that he was under 16 throughout the charge period.

3. [11]

   In 2018 Term 4 ran from 15 October to 19 December. At some time in that period, following a conversation between the offender and the victim at school, the victim added the offender on his mobile phone application “Snapchat” and the offender accepted this. The two then commenced exchanging simple greetings, both on Snapchat and when they encountered each other at school.

4. [12]

   After approximately one week the messages took a sexual turn when the victim sent to the offender a photograph of his erect penis. She responded with an image of her bare breasts, covered by her hands. The victim then sent another photograph of his penis and she sent one of her fingers touching her vagina on the outside of her underwear.

5. [13]

   One day later the offender sent the victim a close-up image of her breasts partially covered by her hand and the victim responded with another photograph of his erect penis. On the same day the offender sent another photograph of herself holding her breast. A further week later the victim sent to the offender a video of himself masturbating and she responded with a video of herself squeezing her breast. After about two days the offender sent the victim a video of herself “rubbing the outside of her vagina whilst wearing underwear” and after approximately another week the victim sent an image of himself naked and the offender sent a photograph of her breasts.

6. [14]

   The exchange of sexual images described above took place over 2 ½ weeks and it concluded by about 22 December 2019, when the victim went on holiday with his family. He then did not have Internet access for about two weeks. There were further exchanges of such images in the last two weeks of January 2019, during the school holiday, and in the first two weeks of Term 1, between 29 January and 13 February 2019. These additional exchanges were all part of the conduct that constituted the grooming offence in Sequence 1. The conduct spanned in total about three months.

7. [15]

   At some time during the first 2 ½ weeks of Snapchat exchanges the victim on one occasion left his classroom, ostensibly to get a drink, and went to a storeroom where the offender was working on a computer. They had a brief conversation and then kissed. The kissing was charged as Sequence 6 on the Form 1. The offender pulled down her shirt to show the victim her cleavage. He “placed his hand on the outside of the offender’s pants and [she] placed her hand over the victim’s pants”. The encounter lasted no longer than five minutes. At its conclusion the victim returned to his classroom.

8. [16]

   On an occasion within the last three weeks of the school holiday, the offender and the applicant met in a car park. She was seated in the driver seat of her vehicle and he stood outside. They spoke for a while before kissing on the lips, which was charged as Sequence 11 on the Form 1. The victim touched the offender on her breasts outside her shirt; she attempted to pull the shirt down and showed the victim her cleavage. The victim placed his hand on the outside of the offender’s pants between her legs while she was seated and she “touched [his] penis on the outside of his pants”.

9. [17]

   On an occasion during the first week of Term 1, at school the offender attempted to kiss and to touch the victim sexually. He avoided the physical contact, although at this time the two were still exchanging sexual images on Snapchat. This attempted contact, early in Term 1, is not the subject of a charge.

10. [18]

    On 14 February 2019 the offender was aware that police wished to speak with her. When the victim phoned her that day she told him that the police were at her home and that he should not tell anyone what had occurred between them as they would both “get into trouble”. She asked the victim to delete her number. The offender spoke to police later that day and volunteered that she was aware that an explicit video of herself was circulating at the high school. Police interviewed the victim and were informed by him that he and the offender had exchanged intimate images. He subsequently informed his mother of the physical contacts with the offender and the mother reported this to police.

11. [19]

    In a recorded interview with police following her arrest the offender provided a version of events similar to that given by the victim but endeavoured to minimise her own conduct and to portray the victim as the instigator of sexual interactions between them. She said that she was not sexually aroused by interactions with students and other young males but craved their attention.

12. [20]

    Although not expressly revealed in the evidence, it is apparent that the laying of the charges led to the applicant’s employment being terminated very shortly thereafter and her Honour proceeded on that understanding.

Applicant’s personal background

1. [21]

   The applicant did not give evidence on sentence. Her personal background was conveyed to the judge by tendering a report dated 26 May 2020 from Ms G Lattas, a forensic psychologist. This contained hearsay of the history that the applicant had supplied to Ms Lattas. Despite the second-hand form of the evidence, the learned sentencing judge accepted the personal history that is summarised in the following paragraphs. Her Honour was entitled to do so in the absence of any submission from the Crown that it was implausible or that it was contradicted by other evidence. Much of the history was consistent with observations made by mental health professionals during post offence assessments and treatment of the applicant in 2019 and 2020.

2. [22]

   Her Honour accepted that the applicant’s childhood and upbringing through teenage years was traumatic. Her father was an alcoholic who was violent towards her mother, necessitating that the applicant call the police on occasions. From the age of 10 the applicant was herself the victim of physical and emotional abuse by her father, as well as inappropriate sexual comments. During her school years the applicant sought counselling to support her in dealing with her father’s abuse. The domestic conflict extended into the applicant’s early adulthood. She took out an Apprehended Violence Order against her father at the age of 20. The applicant’s older sister was highly intelligent and was treated differently by her parents. This resulted in a jealous preoccupation on the part of the applicant, with unstable reactive moods and unprovoked aggression towards the sister.

3. [23]

   The applicant commenced self-harming at the age of 14. Through her adolescence she sought attention from males to an abnormal extent, considered by Ms Lattas to have been a manifestation of feelings of rejection, inadequacy and low self-worth. Ms Lattas opined that these feelings may have developed as a reaction to physical and emotional abuse within her family and to a perception that she was rejected by her parents and treated differently from her sister.

4. [24]

   At the age of 16 the applicant commenced her involvement in the field of physical education, as a development officer and coach with the Australian Football League. She completed her Higher School Certificate followed by tertiary study for the degrees of Bachelor of Teaching (Secondary) and Bachelor of Health and Physical Education. She attained those degrees in 2013. The applicant drank alcohol regularly from about age 17 and engaged in binge drinking during her university years. She used illicit drugs from the age of 22.

5. [25]

   While working as a teacher in the years 2013 to 2018 the applicant completed numerous professional development courses, resulting in accreditation for advanced levels of sports instruction, umpiring, first-aid proficiency, firefighting and general emergency training.

6. [26]

   In about 2013, at age 21, the applicant commenced a relationship with a male partner who was three years older than herself. They married in early 2018. He worked away from home for extended periods, particularly during 2017. The relationship deteriorated during 2018. In that year the applicant began to talk to other men on social media and she joined a dating platform for married people seeking affairs. The applicant resorted to heavy alcohol use in the context of her marital difficulties in 2018. In October 2018 she learned that her husband was also on a dating website. After an argument they both agreed to stop such online interactions.

7. [27]

   The applicant was evidently undergoing a marital crisis in late 2018 and early 2019. On Christmas Eve 2018 she became aware that her husband had sent sexually explicit photographs to their neighbour. He had previously had an intimate relationship with that person. The applicant told Ms Lattas that at this time she went through cycles of deleting everyone from her social media and being self-deprecating about her behaviour, then feeling lonely and seeking reassurance and affection by talking to men online and sending sexual images of herself. She was obsessed with attention from others. She “acknowledged a deterioration in her boundaries” during this period as she pursued online connections with males younger than herself, through which she could feel wanted and receive attention “without the relationship”. These pursuits of attention were followed by extreme feelings of humiliation and self-disgust. The applicant’s husband left her not long after the charges were laid.

Objective seriousness

1. [28]

   The self-images transmitted by the offender in Sequence 1 were not of the most pornographic type. The physical contacts in Sequences 8 and 10 were momentary and involved touching on the outside of clothing. All of the conduct was motivated by the applicant’s desire for attention rather than sexual gratification. On the other hand, the seriousness of the offences was heightened by the age difference between the victim and the applicant and by her position of trust in relation to his care. As a student the victim was inherently vulnerable to inappropriate advances from a female teacher 12 years his senior. He was entrusted by his parents and by the State to the staff of the school, including the applicant, for his education, not to be drawn into sexual activity out of his depth. The sentencing judge accepted that each offence was below the mid-range of seriousness for its type. The Crown conceded to the sentencing judge that the Form 1 matters were “not discrete offences”. Her Honour justifiably found that they fell towards the lower end of the range of seriousness and did not give rise to any significant increment of penalty.

Borderline Personality Disorder

1. [29]

   On 3 March 2019 the applicant was admitted to a hospital in her Local Health District. She presented with poisoning and suicidal ideation. She had overdosed on strong painkilling medications and Valium. The applicant was hospitalised for three days. Doctor Bhatt attended her and upon her discharge on 6 March 2019 he recorded the following:

2. [30]

   Ms Lattas recorded that in consultation on 15 April 2019 the applicant “endorsed symptoms consistent with a diagnosis of Borderline Personality Disorder”. Ms Lattas summarised those symptoms as follows:

3. [31]

   Ms Lattas was of the opinion that the applicant’s disorders “have been long-standing and were present at the time of the index offences” and that the offences followed upon “an escalating pattern of reckless, self-destructive behaviours” over the preceding year. She concluded that the escalation appeared to be triggered by the process of separation from her husband “which may have activated insecurities around being unwanted and worthless”. It was noted that the applicant had “experienced significant emotional distress and anxiety when separated from attachment figures during her childhood and adolescence”.

4. [32]

   In April 2019 the applicant’s general practitioner, Dr Hood, referred her to the Centre for Psychotherapy of her Local Health District. She was assessed at the Centre on 29 April 2019 by Ms J Koorey, a Senior Social Work Therapist, whose assessment was endorsed by Ms V Ross, a clinical psychologist at the Centre. Ms Koorey’s report of 30 April 2019 was before her Honour. It showed that at that time the applicant met eight of the nine diagnostic criteria for Borderline Personality Disorder, the only criterion not present being transient psychotic and/or dissociative states. The applicant also met the Centre’s self-harm criteria. The applicant was willing to embark upon the two treatment approaches offered by the Centre but there was a waiting period for availability, which turned out to be slightly over one year.

5. [33]

   Ms Koorey made the following observations of the applicant as at 29 April 2019, which was two months after she had been charged:

6. [34]

   In mid-2029 the applicant was referred by her General Practitioner to Dr R Cantali, a psychologist in private practice, who recommended that she undergo psychotherapy for Borderline Personality Disorder. Psychotherapy sessions commenced in July 2019 while the applicant was on the waiting list for treatment by the Centre for Psychotherapy of the Local Health District. Doctor Cantali noted the following symptoms of Borderline Personality Disorder:

7. [35]

   Doctor Bendit is a government medical officer of the applicant’s Local Health District. He is a Staff Specialist Psychiatrist. His first report of 11 May 2020 confirmed the applicant’s diagnosis of Borderline Personality Disorder and noted that she had been on the waiting list for treatment since April 2019. Her treatment commenced at the end of April 2020. At the time of sentence she was receiving 1-2 psychotherapy sessions per week in a program that Dr Bendit intended should continue for 14 months.

8. [36]

   In a second report dated 19 August 2020 Dr Bendit said this (emphasis added):

Moral culpability, rehabilitation

1. [37]

   In the sentence proceedings before her Honour there was discussion of whether the case engaged the following principles, as stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]:

2. [38]

   During the sentence hearing on 19 August 2020 counsel for the applicant expressly did not submit that there was a causative relationship between the applicant’s diagnosed mental disorders, or any of them, and the offending. After the sentence hearing and before the day on which the matter was listed for sentence to be pronounced, counsel forwarded to the judge’s chambers additional reports that had not been tendered on 19 August. These included the hospital discharge report of 6 March 2019 relating to the applicant’s admission after her attempted suicide, the assessment of Ms Koorey of 29 April 2019 and Dr Bendit’s second report dated 19 August 2020.

3. [39]

   That material was received as an exhibit on 4 September 2020 very shortly before her Honour delivered her Remarks on Sentence and pronounced the orders. On the basis of the additional reports counsel for the applicant changed his position and sought to invoke the principles quoted above from Director of Public Prosecutions (Cth) v De La Rosa. The following exchange occurred:

4. [40]

   With due respect to her Honour and to counsel, the passages from Dr Bendit’s report that are quoted at [36] above convey a direct and explicit expression of opinion, from the applicant’s treating psychiatrist, that there was a causal relationship. Every professional opinion that was before her Honour confirmed that the clinical manifestations of the applicant’s Borderline Personality Disorder included extremely negative self-image, obsessive and compulsive seeking of validation and affection from others and impulsivity. Dr Bendit characterised the offending precisely in terms of those clinical features.

5. [41]

   In her Remarks on Sentence, having noted the concession by counsel, which in my view was not justified, her Honour held as follows:

6. [42]

   Her Honour’s rejection of a causal link between the applicant’s disorder and the offending is, with respect, inconsistent with the following finding, which her Honour adopted as one of three reasons for taking a guarded view of the applicant’s prospects of rehabilitation:

7. [43]

   The applicant has no prior criminal record. In that context, the question of rehabilitation is concerned with her being restored to good conduct without repetition of offending such as that which was before the learned judge. Her Honour’s finding that the applicant’s rehabilitation is dependent upon continued treatment for the Borderline Personality Disorder inherently involved acceptance that the disorder was at least a contributing cause of the offending. I am unable to reconcile the conclusion at [205] of the Remarks with the rejection of a causal connection at [218].

8. [44]

   The implicit acceptance of a causal relationship at [205] is strongly supported by the evidence on sentence. Her Honour accepted the diagnosis of Borderline Personality Disorder and its attributes as explained in the medical and psychological reports. Having regard to the good character of the applicant in all other respects and the absence of any evidence or finding of personal sexual gratification or deviance, the inference was inescapable that the applicant’s diagnosed disorder had been a significant cause of her extraordinary conduct towards the 14-15-year-old victim. The applicant was entitled to the benefit of this inference if it was supported on the balance of probabilities, as in my view it clearly was.

9. [45]

   There is no ground of appeal that challenges, specifically, her Honour’s rejection of a causal link between the disorder and the misconduct charged. However, when determining whether the sentence is manifestly excessive under appeal ground 3 it is open to this Court to take into account that the sentence imposed must have been significantly informed by her Honour’s conclusion at [218], which I have found to be inconsistent with the earlier finding at [205] and contrary to the medical evidence that was all one way. Having concluded on ground 3 that the sentence was manifestly excessive, it became necessary to consider what would be an appropriate penalty to which this Court should resentence the applicant. I have approached that question on the basis that I am satisfied that the applicant’s diagnosed mental condition was the substantial cause of her offending, that her moral culpability is significantly reduced for that reason and that it is not appropriate to impose upon her, for the purpose of general deterrence, a sentence of the length that might otherwise be appropriate to serve that end.

Low risk of re-offending, remorse

1. [46]

   Her Honour accepted that the applicant was at a low risk of reoffending. That view was supported by a favourable Sentence Assessment Report prepared by a Community Corrections Officer. The Report proposed that if the applicant were to be dealt with by way of a Community Corrections Order, supervision would include monitoring the applicant’s continued engagement with the psychotherapy treatment that she was receiving from Dr Bendit in the public health system and from Dr Cantali in private practice. They both confirmed the applicant’s cooperation and genuineness in accepting the treatment.

2. [47]

   Her Honour concluded that the applicant had “demonstrated some insight into her offending” and “some remorse” but expressed the following reservations:

3. [48]

   When considering resentence I have taken into account that, although the Sentencing Assessment Report recorded that the applicant “minimised the physical elements of the offence and denied ever kissing the victim”, when the applicant came before her Honour on 19 August 2020 she agreed the statement of facts which set out the two instances of kissing and she acknowledged her guilt of the Form 1 offences, Sequences 6 and 11, which were based upon the kissing.

4. [49]

   Further, the Sentencing Assessment Report contained the following record of attitudes expressed by the applicant in May 2020, which appear much more significant to genuine remorse than the applicant’s inconsistency regarding “the physical elements”:

5. [50]

   For the purposes of resentencing, I would not act upon her Honour’s conclusion that the applicant’s attitude “lacks full acceptance of both criminal responsibility, and harm to the victim”. I do not regard that adverse conclusion as supportable on the evidence referred to above.

Early pleas of guilty

1. [51]

   Her Honour allowed a discount of 25% in recognition of the utilitarian value of the applicant’s early pleas of guilty. The discount would of course have been applied to the indicative sentences. The implied starting points of the indicative sentences were therefore as follows:

2. [52]

   The appeal against sentence is directed to the aggregate but the Court may be aided in forming a conclusion as to whether the aggregate is plainly unjust and manifestly excessive by consideration of the indicative sentences that have been nominated. A strong indication that the aggregate sentence imposed in this case was manifestly excessive is that the starting point indicative penalties for Sequences 8 and 10 were, in each case, nearly half the maximum. When one considers the wide range of objective gravity of offending that is comprehended by ss 61M(2) and 66DB, the location on that scale of the physical conduct in this case and the significant reduction in moral culpability on account of the respondent’s mental condition, the starting point indicative sentences for these offences are seen to be clearly disproportionate.

Harm to the victim

1. [53]

   Some measure of harm is presumed in the structure of provisions such as ss 61M(2) and 66DB, where non-consent is not an element of the offence: Clarkson v The Queen; EJA v The Queen (2011) 32 VR 361; [2011] VSCA 157 at [33]. The degree of harm suffered by the victim is commonly an important integer in assessing the objective gravity of an offence against s 61M(2) of the Crimes Act or its successor, s 66DB. Given the limited physical element of offences against those sections, where harm is occasioned it will usually be of a psychological nature. It can reasonably be inferred that sexual interaction with a teacher 11-12 years older would likely cause a degree of emotional confusion in a high school student 14-15 years of age and would disrupt his emotional and personal development.

General and specific deterrence

1. [54]

   It is clear from the Remarks that general deterrence was a significant consideration for her Honour. In forming a view about resentence I have had regard to the need for general deterrence, moderated by allowance for the applicant’s reduced culpability by reason of her Borderline Personality Disorder. Like every aspect of sentencing, the weight to be given to general deterrence has to be individualised to the instant case, taking account of the circumstances of commission of the offence and factors specific to the individual offender that bear upon whether he or she is a suitable vehicle for conveying deterrence.

2. [55]

   With respect to specific deterrence, contrary to her Honour’s view, I do not consider that this has any part to play in sentencing the applicant. She has not only lost her immediate employment but in all probability she will not be able to re-engage in her profession or in any allied field, for example sports coaching. The applicant is unlikely to have the opportunity to reoffend in a similar manner. Further, the strong evidence before the sentencing judge regarding the applicant’s sense of shame and her conscientious pursuit of psychotherapeutic help indicate that she needs no further personal deterrence beyond what she would feel from her public and professional humiliation and from a sentence measured upon other considerations.

Ground 3 – manifestly excessive sentence

1. [56]

   The principles upon which the Court determines a ground of appeal that a sentence is manifestly excessive were restated by RA Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. The principles include, most pertinently for the present case, the following:

2. [57]

   In all of the circumstances of this case, concerning the objective gravity of the offending acts, qualifications to the applicant’s moral culpability and a subjective case that the Crown acknowledged at first instance was “very persuasive”, I am satisfied that the head sentence of 3 years and 10 months with a non-parole period of 2 years and 3 months is plainly unjust. There must have been some misapplication of principle even without identifying where and how. As was said in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

3. [58]

   The Court is, however, required to give reasons in resentencing the applicant. My reasons for having joined in the orders for the substituted sentence in this case are, in large part, the reasons I have given above for differing from her Honour concerning the applicant’s remorse, acceptance of responsibility in recognition of harm, the causative effect of her Borderline Personality Disorder and the diminished importance of both general and specific deterrence in this instance.

4. [59]

   In addition, the evidence before her Honour showed that the only recognised treatment for Borderline Personality Disorder is psychotherapy, which would not be available in prison. I have quoted the opinions of the applicant’s two treating professionals to the effect that interruption of the treatment she had been receiving up to the date of sentence would disrupt “healthy changes underway” and impair the efficacy of resumed treatment after her release. Taking into account all other sentencing considerations, there was much force in the submission made to her Honour that the community’s interest would best be served by giving significant weight to the fourth of the purposes of sentencing prescribed by Parliament in s 3A of the Crimes (Sentencing Procedure) Act, namely:

5. [60]

   In circumstances where this Court found it necessary to resentence after the applicant had served 17 months full-time imprisonment, the best that could be done to promote rehabilitation was to fix a term under which she may be released to parole forthwith and thereafter be subject to the supervision of Community Corrections over the next 11 months.

Ground 1 – non-parole period for Sequence 8

1. [61]

   Section 61M(2) of the Crimes Act under which Sequence 8 was charged was in force up to 30 November 2018 in the following terms:

2. [62]

   On and from 1 December 2018 s 66DB of the Crimes Act came into force and replaced s 61M(2). The relevant part of s 66DB is as follows:

3. [63]

   Also on 1 December 2018 the following section was inserted in the Crimes Act:

4. [64]

   Subsection (3) of s 80AF, which it is not necessary to set out in full, provided that a “child” for the purposes of the section is a person who is under the age of 16 years and “sexual offence” includes an offence against, inter alia, any provision of Pt 3 Div 10 of the Crimes Act, which includes sections in the range 61A to 80AG.

5. [65]

   Sequence 8 was charged as having been committed between 15 October 2018 and 19 December 2018. Those were the commencement and end dates of Term 4 of the school year. The facts summarised at [11]-[15] above show that the offence must have been committed in late November or within the first three weeks of December 2018.The four conditions (a)-(d) in s 80AF(1) are met. For the purposes of condition (d), the repeal of s 61M(2) and the insertion of s 66DB had the effect that the conduct of the applicant would have constituted more than one offence during the charge period, namely an offence against either section, depending upon exactly when it took place.

6. [66]

   By force of s 80AF(2) it was therefore open to the Crown to prosecute the applicant’s conduct charged in Sequence 8 under either s 61M(2) or s 66DB. The two provisions prescribe the same maximum penalty. In s 80AF(2) I interpret the words “whichever of those sexual offences has the lesser maximum penalty” as referring equally to both offences where the maximum penalties are the same. The alternative would be to interpret sub-s (2) as inoperative in a case of equal maxima, which would frustrate the evident object of the section and lead to an inability to prosecute at all. Although it requires some straining of the statutory language, the interpretation that I have adopted is necessary to avoid reading the section in a manner that, in my view, could not have been intended by Parliament.

7. [67]

   Up to and including 30 November 2018, the table to Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act specified a standard non-parole period of 8 years for an offence against s 61M(2) of the Crimes Act. Standard non-parole periods are specified for contraventions “in the middle of the range of seriousness” on objective factors: s 54A(2) of the Crimes (Sentencing Procedure) Act. This Court has on a number of occasions commented upon the apparent incoherence of a standard non-parole period fixed at a very high proportion of the maximum penalty: see for example MH v R [2011] NSWCCA 230 at [52].

8. [68]

   With effect from 1 December 2018, when s 66DB was enacted in place of s 61M(2), no standard non-parole period was specified in the table to Div 1A of Pt 4 for the new offence and the standard non-parole period for s 61M(2) was removed. At the same time the following clause was inserted in the savings, transitional and other provisions of Sch 2 of the Crimes (Sentencing Procedure) Act:

9. [69]

   Section 25AA(2) of the Crimes (Sentencing Procedure) Act is relevant in this context. It provides as follows:

10. [70]

    The difficulty with applying cl 91 of Sch 2 is that the prosecution was unable to say and did not prove that the offence in Sequence 8 was “committed before that amendment”, that is, before 1 December 2018. The difficulty with applying s 25AA(2) is that the prosecution was unable to say and did not prove whether “the time of the offence” was prior to the amendment of the Table, when a standard non-parole period was specified for an offence against s 61M(2), or after the amendment, when there was no longer any such standard non-parole period prescribed. The result is that, where Sequence 8 has been charged under s 61M(2) in reliance upon s 80AF and, on the agreed facts, that offence may have been committed on either side of the date from which the standard non-parole period was removed from the Table, it is not possible to say that the standard non-parole period applied. Neither cl 91 of Sch 2 nor s 25AA(2) of the Crimes (Sentencing Procedure) Act is engaged in a way that would make that standard non-parole period applicable.

11. [71]

    It follows that ground 1 should be upheld. Her Honour expressly proceeded on the basis that a standard non-parole period applied. Having regard to all other objective and subjective factors that bear upon an appropriate sentence in this particular case, in the exercise of my own sentencing judgment I would not consider that the appropriate penalty is to any appreciable extent affected by whether or not the Court should have regard to the statutory guidance of a standard non-parole period. Nevertheless, by taking it into account her Honour had regard to an irrelevant consideration and the exercise of her sentencing discretion was thereby affected by error. As I am of the view that a lesser sentence is warranted, the upholding of this ground, alone, would lead to resentencing.

Ground 2 – misapprehension of facts in Sequence 8

1. [72]

   Pursuant to ground 2 it was argued that the learned judge erroneously took the facts of Sequence 8 to involve direct touching by the applicant of the victim’s genitals, whereas it was agreed that this touching took place only on the outside of the victim’s clothing. Having reviewed closely her Honour’s Remarks on Sentence I am satisfied that they do not disclose any such misapprehension. I would reject ground 2.