Mol v R

PAYNE JA: On 4 August 2015, following a trial before a jury, Mr Pierre Mol, the applicant, was found guilty of 6 counts of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) and 5 counts of having sexual intercourse without consent contrary to s 61I of the Crimes Act. He was found not guilty of a further 6 counts contained in the indictment of a similar nature (being 4 counts of having sexual intercourse without consent contrary to s 61I of the Crimes Act, 1 count of indecent assault contrary to s 61L of the Crimes Act, and 1 count of committing an act of indecency with or towards a person 16 years or over, contrary to s 61N(2) of the Crimes Act).

The charges on the indictment related to sexual contact between the applicant and three complainants, whose names were anonymised pursuant to s 578A of the Crimes Act as HS, KC and AY. The applicant had pleaded not guilty to all charges.

On 9 October 2015, the applicant was sentenced to an aggregate non-parole period of 10 years imprisonment (to commence on 4 August 2015) with a balance of term of 4 years imprisonment. Accordingly, the applicant will be eligible to be considered for release on parole on 3 August 2025.

On 1 September 2016, the applicant filed an application for leave to appeal against both his conviction and sentence. The Crown did not object to an extension of time being granted.

The Crown case was that the applicant committed the offences after employing the three women as artist’s models. The women were each recruited via advertisements they had placed on a website known as “Gumtree”, seeking casual work.

On 30 April 2013, HS placed an advertisement on Gumtree seeking babysitting work. She was 19 years old at the time. The applicant responded to her advertisement, offering her $45 per hour to work as an artist’s model. He attached a link to his webpage with examples of his artwork and provided his phone number. HS contacted the applicant and the two subsequently met in the city. The applicant showed HS photographs he had taken on his phone of some of his drawings and told her that he had a professional art studio.

A few days later, likely on 4 May 2013, the applicant sent HS a text message containing his address. HS went to the applicant’s flat. The applicant took HS into a room which contained a bed, a light and a painting easel. The applicant asked HS to take off her top and bra. The applicant asked if she needed help and she said “no”. While HS was taking off her bra, the applicant approached her, squeezed and licked her breasts and said he liked “pointy breasts”.

The applicant then instructed HS to take off her pants. HS said “no” and told him that she had changed her mind. When she went to pick up her top the applicant kicked her shirt away and told her to take her pants off. HS took off her pants as she was scared. The applicant told her to get on the bed. HS was crying. The applicant told her to take off her underwear, before taking off her underwear himself.

The applicant then put his head between HS’s legs and inserted his tongue into her vagina for above five minutes. The applicant then drew HS. He told her to open her legs, but she did not do so. He then pulled apart her legs. HS was still crying. The applicant approached her again and inserted his fingers into her vagina. When he did this he said that he was trying to make her vagina a focus of his drawing such that he needed it to “swell”. HS alleged that the applicant also inserted his tongue into her vagina at this time, however the jury returned a verdict of not guilty in relation to this charge.

HS was curled into a ball, with her legs to her chest. While standing facing her, the applicant took down his pants and began to masturbate himself. He then took HS’s hand, placed it on his penis and moved her hand up and down. HS made further allegations, including that the applicant forced her to fellate him, again licked and digitally penetrated her and then masturbated himself, however the jury also returned verdicts of not guilty to these charges.

The applicant left the room and returned with a paper towel. He wiped HS’s eyes before taking a series of photographs of her. He then showed HS a drawing, gave her $120 and said he would like to work with her again. HS left the applicant’s flat, but then stopped a few streets away and cried.

Sometime later HS told a friend what had happened. She was upset and distressed. HS did not go to the police at that time. She was ashamed because she had taken money from the applicant. At some point HS told her boyfriend what had happened.

In August 2014, HS placed another advertisement on Gumtree, seeking babysitting work in the same terms as her first advertisement. She received a response from “Pierre” who asked if she would be interested in doing work as an artist’s model. HS realised that this was the applicant. On 22 August 2014 she reported what had happened to her to the police and made a statement on 16 October 2014.

The defence case was that there was consensual sexual activity between the applicant and HS. The applicant agreed that he briefly performed cunnilingus on HS after he asked if he could “go down” on her and she said it was okay. He accepted he may have touched her breasts during their encounter. He denied the other alleged sexual acts and claimed she did not cry during the sexual activity.

KC and AY were teenage Canadian tourists in Australia on a working holiday. KC placed an advertisement on Gumtree seeking casual work for her and AY. The applicant sent KC a message offering them both work as artist’s models for $45 per hour and sent a link to a webpage with examples of his artwork.

On 12 May 2013, KC and AY met the applicant in the city, before he drove them to his flat. He took them into the bedroom and told them to take off their clothes. AY took off her top and bra, but refused to take off her pants. KC removed all her clothes except for her underpants.

The applicant posed KC and AY on the bed and took a photograph of them. He then approached KC and tried to take her underwear off. KC said she could take off her own underwear and did so. The applicant then started touching and pulling each of KC and AY’s nipples saying he wanted them to be harder.

The applicant then repositioned the women and told KC he wanted to open up her vagina. KC said she could do it herself, but the applicant persisted and pulled at the outside of her vagina. He took a photo of AY’s face and sketched them both. KC alleged that the applicant touched her vagina again; however the jury returned a verdict of not guilty to this charge. The women then took photos of his sketches and the applicant gave them money. He asked them to come to his studio again separately in the following days.

On 14 May 2013, AY met the applicant in the city and travelled with him to his studio. Once inside the applicant began taking off his clothes. AY left the room and sent an electronic message to KC about what was happening. The applicant then took AY to the bedroom and removed her top and jeans. He pushed her to the side of the bed and grabbed her underwear. AY tried to keep hold of her underwear, but panicked and put her hands over her face. The applicant was then able to take off her underwear. He inserted his finger into her vagina and moved it in and out. AY had a tampon in her vagina and was crying and looking at the ceiling. The applicant then removed his finger, put his head between her legs and put his tongue in her vagina. The applicant put AY’s hand on his pants over his erect penis. AY moved her hand and the applicant took off his pants. He tried to get AY to masturbate him while his tongue remained in her vagina.

The applicant left the room and returned with a baby wipe. He took out AY’s tampon, knelt between her legs and inserted his penis into her vagina. AY was crying and in pain. The applicant was thrusting his penis into her vagina, before stopping.

The applicant sat on the stool and sketched AY, asking if she was mad at him, scared or angry and what she would say to KC. AY dressed and the applicant showed her the drawing. He gave her $100 and drove her back to the train station. AY was still crying. AY told KC what had happened and together they decided to go to the police and make a report.

The defence case was that in the 12 May 2013 modelling session, the applicant touched KC and AY with their consent, or at least with the belief in their consent. The applicant admitted that he touched KC and AY’s breasts and that he touched KC’s vagina once.

In respect to the 14 May 2013 modelling session, the defence case was that there was consensual sexual activity between the applicant and AY. He admitted that he inserted his finger in her vagina and he performed cunnilingus on her. He did not admit that he attempted to get AY to masturbate him. The applicant maintained that AY removed her tampon. He asserted that he inserted his penis into her vagina, but quickly withdrew it when she appeared uncomfortable. He maintained that she only cried after the sexual activity.

The police phoned the applicant on 15 May 2013 to inform him that they would attend his home shortly.

Police searched the applicant’s home and found sketches of HS, KC and AY. The applicant initially told the police that he had taken a memory card out of his camera and must have left it somewhere else. He then told the police that he had destroyed the card immediately before they arrived. Police found fragments of the memory card in parts in the garden and over the fence. The applicant told police he had panicked about the contents of the memory card.

The defence case was that the applicant destroyed the memory card in a panic because he was aware that AY was upset after the sexual activity occurred.

The applicant relied upon the following grounds of appeal against his conviction:

The Crown submitted that the applicant required leave to appeal against his conviction as each of his grounds involve mixed questions of law and fact: s 5(1)(b) Criminal Appeal Act 1912 (NSW).

With regards to grounds 3 and 4, the Crown submitted that leave was also required under r 4 of the Criminal Appeal Rules which provides:

Section 97(1) of the Evidence Act 1995 (NSW) provides:

In Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [124], Simpson J said:

In Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 at [359]-[360] the New South Wales Court of Criminal Appeal (comprised of Bathurst CJ, Hoeben CJ at CL and Simpson JA) held:

The requirements of s 97(1) were recently considered by the High Court in IMM v R (2016) 257 CLR 300; [2016] HCA 14. The plurality (French CJ, Kiefel, Bell and Keane JJ) at [44], [46] and [51] observed (footnotes omitted):

Tendency evidence may only be admitted in criminal proceedings if it also passes the test in s 101(2) of the Evidence Act which provides:

In R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319, Spigelman CJ (with whom Sully, O’Keefe, Hidden and Buddin JJ agreed) said at [91]-[97]:

In determining the prejudicial effect that evidence may have on a defendant, it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect: DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [171]; R v Ngatikaura (2006) 161 A Crim R 329; [2006] NSWCCA 161 at [32]; Hughes v R [2015] NSWCCA 330 at [192]. In BC v R [2015] NSWCCA 327 Beech-Jones J (with whom Simpson JA agreed) emphasised at [105]-[110] the critical importance of the specific identification of the prejudice to a defendant in conducting the weighing exercise required by s 101 and the importance of the consideration of directions which can be given in the particular case which could eliminate or ameliorate the identified prejudice.

Finally, while s 101(2) requires the court to make an evaluative judgement rather than exercise a discretion, in an appellate review of determinations made under this section, the principles in House v The King (1936) 55 CLR 499 at 504-505 governing appellate review of discretionary decisions apply: see generally Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 at [6] per Basten JA (with whom Fullerton and RA Hulme JJ agreed) and DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [170] (although the question addressed in that case arose in the case of an interlocutory appeal to the Court).

The Crown served three tendency notices ahead of the trial. The tendencies the Crown sought to rely upon were:

It was common ground that the third notice effectively subsumed the first and that the evidence relied upon was the tendency to act in a particular way described in the second notice and the tendency to have a particular state of mind described in the third notice.

The primary judge permitted the Crown to rely upon the asserted tendency to act in a particular way (to engage in sexual activity with young women acting as artists’ models) to prove the disputed acts relating to HS (charges 3 – 9).

Mr Gartelmann SC, in the course of his thorough and helpful submissions for the applicant, conceded that the primary judge was correct to permit the evidence relating to tendency to act in a particular way to go to the jury. Although a document had been handed up for the purposes of a voir dire indicating informal agreement by the defence to the proposition that sexual activity had taken place with HS, subject to various qualifications, that question remained in issue before the jury.

That concession was correctly made. The case has a number of similarities with the tendency evidence addressed by this Court in Saoud at [49]-[53] regarding the significant probative value of modus operandi tendency evidence of the kind here engaged.

The disputed acts in relation to HS were in contest before the jury. The primary judge was correct to permit the Crown to rely upon the asserted tendency to act in a particular way (to engage in sexual activity with young women acting as artists’ models) to prove the disputed acts relating to HS. That evidence had significant probative value within the meaning of s 97 and the probative value of that evidence substantially outweighed its prejudicial effect within the meaning of s 101.

The primary judge permitted the Crown to lead evidence from HS, AY and KC to prove that the applicant had a tendency to have a particular state of mind, namely to be reckless as to whether or not the young women who he engaged to model for him were consenting to sexual contact with him.

The applicant accepted that the tendency evidence which was admitted about the applicant’s state of mind met the threshold of admissibility in s 97(1)(b) of the Evidence Act as having “significant probative value”.

It was submitted, however, that her Honour erred in failing to find that the probative value of the evidence did not substantially outweigh the prejudicial effect it may have on the defendant within the meaning of s 101(2) of the Evidence Act.

The prejudice identified by the applicant was that the jury may be confused about the use which could be made of the tendency evidence in dealing with the two different types of offences charged. The applicant submitted:

Whilst it was common ground before this Court that the mental element required to establish indecent assault contrary to s 61L of the Crimes Act was different to that required to establish sexual intercourse without consent contrary to s 61I of the Crimes Act, it was also common ground that recklessness as to consent was an element of each offence.

The primary judge accepted that directions limiting the use of evidence of the tendency would be “somewhat difficult” but not that they would be “impossible to follow” or “susceptible to misuse by a jury”. The judge therefore concluded that the probative value of the evidence substantially outweighed its prejudicial effect.

The applicant submitted that the prejudicial effect of the evidence was significant because of the risk the jury might use it in the determination of issues not confined to recklessness as to consent, despite directions to the contrary. Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4 at [44]-[45] was relied upon. It was submitted that even if evidence of such a tendency had significant probative value, it was not such as to outweigh its prejudicial effect for the purposes of s 101(2) of the Evidence Act.

In the judgment of 14 July 2015 her Honour dealt with this issue:

In addressing the critical balancing exercise required by s 101 of the Evidence Act, her Honour later said that:

An important feature of the present appeal is that no ground of appeal asserted that her Honour erred in any part of the summing up and it was no part of the applicant’s case that any part of the summing up itself revealed error. In her summing up, the primary judge addressed this aspect of the tendency evidence as follows:

Her Honour’s summing up continued:

In this Court the applicant accepted that the tendency evidence relied upon to demonstrate the applicant had a particular state of mind had significant probative value within the meaning of s 97. When examined against the critical issues in the case, that concession was correctly made.

A critical issue at trial was whether the Crown had proved that the applicant had the required mental state in committing the acts alleged, many of which the applicant did not dispute. In determining whether the applicant was reckless as to whether the complainants consented to his sexual approaches, it was highly probative that the evidence, taken at its highest, showed that:

The question that arises is whether, within the meaning of s 101, the primary judge erred in weighing the competing considerations and concluding, assuming that clear directions would be given to the jury about the issue, that the probative value of the evidence substantially outweighed the prejudice identified, namely the risk the jury might use the tendency evidence in the determination of issues not confined to recklessness as to consent, despite being given directions to the contrary.

In this regard, the applicant made no specific complaint about the directions actually given by the primary judge, but relied upon those directions only to demonstrate that the risk identified was made patent or materialised.

It will be recalled that the Crown case included the following features:

The last two matters (6) and (7), being the relevant tendency evidence about the applicant’s state of mind, were in context highly probative. The jury were entitled to conclude that the fact that the applicant touched the complainants’ breasts without warning was significant to the issue of whether the applicant had a tendency to be reckless as to whether or not the complainants, whom he engaged to model for him, were consenting to sexual contact with him. The jury were also entitled to conclude, in relation to the complainants HS and AY, that the fact that the applicant persisted in sexual contact with them despite their obvious and visible distress was significant, again limited to the issue of whether the applicant had a tendency to be reckless as to whether or not these two complainants, whom he engaged to model for him, were consenting to sexual contact with him.

The prejudice identified, the risk the jury might use the tendency evidence in the determination of issues not confined to recklessness as to consent, despite directions to the contrary, was relatively slight. Her Honour was entitled to conclude that clear directions could be given to the jury on this topic and to take that matter into account in the balancing test required by s 101(2). The absence of any ground of appeal or specific complaint about those directions is telling. While accepting that the tendency evidence may have a prejudicial effect, the primary judge’s directions given to the jury, set out at [53]-[54] were sufficiently clear to eliminate or significantly ameliorate the identified risk. The applicant did not show, or attempt to show, that the directions actually given were incorrect or insufficient in all the circumstances of the case. The applicant failed to demonstrate that the risk identified was made patent or materialised by those directions. Certainly, the applicant did not show any House v The King error in the way her Honour weighed the competing considerations and reached her conclusion about s 101.

Before leaving ground 1, I should note that contrary to the written submissions of the applicant, nothing in the decisions of the High Court in Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4 at [44]-[45] or Stubley v Western Australia (2011) 242 CLR 374; [2011] HCA 7 prohibited the use of tendency evidence to establish a reckless state of mind on the part of the applicant and her Honour was correct to so conclude:

For these reasons, ground 1 should be dismissed.

So far as ground 2 is concerned, the complaint about separate trials was parasitic upon ground 1. It was submitted only that if the use of tendency evidence was wrongly permitted for the reasons advanced under ground 1, the primary judge erred in refusing the separate trial application.

As ground 1 should be dismissed, it follows that ground 2 should also be dismissed.

I would grant an extension of time to file the notice of appeal. As the applicant has raised an issue sufficiently important to warrant consideration by this Court, I would grant leave to appeal on grounds 1 and 2 but dismiss the appeal on these grounds.

The applicant submitted that a miscarriage of justice occurred as a result of withdrawing a direction to the jury regarding the issue of consent. The issue arose in an unusual way.

Her Honour provided a draft of her directions to the jury (MFI 17) to counsel. MFI 17 provided that “[c]onsents have to be free and voluntary”. In dealing with the element of “without the consent of the complainant” the document distinguished in part between the sexual intercourse without consent offences and the indecent assaults. In respect of both, however, it was noted that “consent obtained by persuasion is still consent”.

In her closing address, counsel then appearing for the applicant told the jury, in terms derived from the Western Australian case Holman v The Queen [1970] WAR 2 at 6:

In summing up, her Honour, in summarising the arguments of counsel for the applicant, told the jury “[counsel for the applicant] reminds you that consent can be reluctant, can be begrudging, and she submits, can be teary”.

At the next break counsel for the applicant asked her Honour to re-direct the jury to the effect that it was not just a submission on behalf of the applicant that consent “can be teary” but that it was so as a matter of law; referring to Stubley at [70], which in turn referred to the relevant passage in Holman. Her Honour indicated she would do so. When the jury returned her Honour gave the jury “…two further directions. The first direction is that I direct you that at law consent can be reluctant, it can be given grudgingly and it can be given tearfully”.

Later that day the Crown raised the issue with her Honour and asked that the re-direction be withdrawn. Written and oral submissions were made by the parties. Her Honour determined to withdraw the direction and re-directed the jury as follows:

The applicant does not in this Court submit that such a direction was correct in law. That concession was correctly made. Having regard to the statutory definition of consent under s 61HA(2) of the Crimes Act, being, “[a] person "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse”, the submission made by trial counsel for the applicant that a direction based on Holman should be given was incorrect. Rather, the applicant submitted in this Court that the withdrawal of the direction at a late stage of the trial caused significant practical unfairness.

Counsel for the applicant in this Court accepted that trial counsel did not seek a re-direction following the direction that was ultimately given in answer to the jury’s question. What was sought was a redirection about implied consent. It was common ground in this Court that a redirection about implied consent should not have been given. Mr Gartelmann SC initially submitted that her Honour should not have withdrawn the re-direction or should have discharged the jury. Neither application was made to the primary judge. He relied, by way of analogy, upon the decision of this Court in Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [145]-[146]. Mr Gartelmann SC ultimately submitted that underlying the request for a re-direction about implied consent was a request for some guidance to the jury about the knowledge of the accused in respect of the consent of the complainant. He submitted that:

Whist it would have been preferable if her Honour had not given a re-direction based on Holman, she was led into that course by counsel for the applicant at trial. As soon as the error was pointed out her Honour corrected the error. It was incumbent upon her Honour to do so. The jury could not have been allowed to deliberate in this case on the basis of directions about consent drawn from Holman. Those directions were clearly wrong, as is now accepted. The applicant’s submission in this Court that the trial judge, faced with the error into which she had been led in the initial re-direction, “ought to have done nothing” must be rejected.

The decision in Robinson involved a very different case where the trial judge had raised a new case in summing up which had not been advanced by the Crown or touched upon by either party in closing address. That case provides no assistance, even by way of loose analogy, to the present applicant.

In the ultimate re-direction which was given, her Honour took complete responsibility for misdirecting the jury. No blame was attached to counsel for the applicant. Counsel then appearing for the applicant asked for a further re-direction in terms of implied consent. It is now common ground that her Honour was correct to reject that application. Any more general additional direction about consent of the kind suggested in this Court was not advanced before the primary judge.

There would have been dangers in any additional attention being given to this issue before the jury. Any additional explanation from her Honour about why she had given the original direction based on Holman and why it was now being withdrawn would, in my view, have been likely to have drawn unwarranted attention to the issue and may itself have led to prejudice to the applicant.

This question of additional directions was quintessentially a matter for determination at the trial in the atmosphere that the parties, including counsel for the applicant, were immersed. No re-direction of the kind now suggested was sought by trial counsel. A different, and incorrect, re-direction about implied consent was sought. No application to discharge the jury was made at the trial based on this issue.

This is not a case where there was any arguable miscarriage of justice in failing to give a further direction about consent or in failing to discharge the jury. The primary judge quickly and accurately corrected an error into which her Honour had been led by counsel for the applicant. The terms of that correction accepted the blame for the error rather than sheeting home responsibility to the applicant’s counsel. No error has been shown in failing to give a further direction or in failing to discharge the jury. No such direction or discharge was sought at the time by experienced trial counsel.

I would refuse leave to the applicant to rely upon ground 3 under r 4 of the Criminal Appeal Rules.

The applicant submitted that the primary judge erred in directions given when addressing a note from the jury. After retiring to consider its verdict, the jury sent a note with the following question:

The primary judge provided the jury with the following written directions in response to that question:

The primary judge also gave the jury oral directions in accordance with the above written directions.

Counsel for the applicant at trial requested that the primary judge give the jury a direction about implied consent based on the case of R v DMC (2002) 137 A Crim R 246; [2002] NSWCCA 513. Counsel for the applicant in this Court accepted that her Honour was correct to refuse to give such a direction.

It was submitted in this Court that in response to the question different directions to the jury ought to have been given. Those additional directions, it was submitted, should have made it clear that it was not necessary that the complainant communicate consent to the applicant. It was submitted that the direction that consent was a “positive thing” was capable of being understood as suggesting the contrary. The applicant also submitted in this Court that the directions to the jury in response to the question ought to have made clear that it remained necessary for the Crown to prove in respect of each of the indecent assault counts that the applicant did not have an honest but unreasonable belief as to the complainants’ consent.

The applicant’s submission on this ground rests to a considerable extent on a construction of the note from the jury. Those submissions proceed on the basis that it should be inferred that the jury were seeking guidance about the requirements upon the Crown to prove the applicant’s mental state about the complainants’ consent in respect of each of the indecent assault counts. This interpretation placed on the note by the applicant does not fairly arise on the language of the note. The note is addressing the requirements upon the Crown to prove the complainants’ state of mind, and in particular, consent given only after an unexpected sexual touching.

This was the subject the primary judge addressed in her directions to the jury. The jury asked no follow up or additional questions following the direction given by the primary judge from which I infer that that her Honour had addressed the subject raised by the jury in the note.

The applicant’s complaint that the direction that consent was a positive thing connoted a requirement for communication of consent does also not arise on a reading of the direction as a whole. Her Honour made clear that consent did not involve proof of communication of that consent to the applicant in the following passage:

There was no realistic possibility that a failure to direct the jury in the terms now suggested caused the applicant to lose a chance of acquittal. The jury received the assistance that they had sought by her Honour directing the jury specifically about whether a complainant’s state of mind after the event of sexual touching might constitute consent. This was the matter about which they had sought assistance. The suggestion that her Honour’s directions implied that consent must be communicated to the applicant in order to be effective is inconsistent with the clear terms of her Honour’s directions.

In the atmosphere of the trial, experienced trial counsel obviously did not read the note in the same way as was advanced on appeal. Nor was any difficulty about consent needing to be communicated discerned. No re-directions of the kind now advanced were sought.

Leave to appeal should be refused on ground 4 under r 4 of the Criminal Appeal Rules.

I agree with the reasons of Fullerton J about the application for leave to appeal against sentence and the order her Honour proposes.

I propose the following orders be made:

JOHNSON J: I have had the advantage of reading the draft judgments of Payne JA with respect to the conviction appeal and Fullerton J concerning the application for leave to appeal against sentence. I agree with the reasons and proposed orders as contained in those judgments.

FULLERTON J: With respect to the appeal against conviction, I have read the draft judgment of Payne JA and agree with his Honour’s reasons and proposed orders.

The applicant relied on three grounds of appeal against the aggregate sentence imposed after trial:

The third ground of appeal concerns a passage in the sentencing remarks where the sentencing judge found that the applicant had destroyed a memory card from his camera as potential evidence during the course of the police investigation.

In the filed submissions, the destruction of the memory card was said to be a reference to post-offence conduct erroneously taken into account by the sentencing judge as an objective feature of the offending.

In the course of the hearing of the appeal, the applicant’s counsel did not seek to argue against another construction of the same passage which counsel accepted would not constitute error.

In the course of detailing various features of the offending conduct which her Honour was satisfied were proved to the criminal standard for sentencing purposes, she said:

Read in context, I am satisfied that her Honour’s reference to the applicant's destruction of the memory card was intended to exemplify that he knew the complainants were not consenting to sexual intercourse, a matter clearly relevant to the assessment of the objective seriousness of those counts where consent was an issue.

The third ground of appeal is not made out.

I am not persuaded that either of the first or second grounds of appeal against sentence are made out.

The first ground of appeal concerns the operation of s 21A(2)(k) of the Crimes (Sentencing) Procedure Act 1999 (NSW) (“the Sentencing Act”) which provides that an offence will be aggravated if the offender abuses a position of trust or authority in relation to the victim in the commission of the offence.

The applicant submitted that it was not open to the sentencing judge to find that the applicant had abused a position of trust or authority relative to any of the complainants since, as young women who had consented to modelling for him naked or semi-naked, he owed them no duty of care. Counsel submitted that it was not enough to invoke the operation of s 21A(2)(k) that the complainants placed their trust in the applicant not to sexually abuse them or to indecently assault them once they had contracted with him to model naked.

Consistently with the features of aggravation listed in s 21A(2) of the Sentencing Act reflecting the common law (see R v Johnson [2005] NSWCCA 186 at [21]), I accept that s 21A(2)(k) was not intended to extend the categories of what might constitute a breach of trust or authority in the commission of an offence at common law where the special relationship between an offender and a victim imposes mutual obligations not to act to the detriment of the other. However, in a given case, the particular nature of the relationship between an offender and a victim may be such that their relationship transcends the duty of care that arises between people otherwise engaged in business or social communion, thereby imposing on them a particular responsibility not to act to the detriment of the other and an obligation the breach of which will operate as a statutory feature of aggravation (Suleman v R [2009] NSWCCA 70 at [22]).

After reviewing the authorities that have considered the nature of a relationship, breach of which will operate to aggravate the offending as provided for in s 21A(2)(k), the sentencing judge regarded the relationship between the applicant, who had represented himself as a professional artist, and the complainants, who had agreed to pose nude or partially nude as models, as constituting a “special or peculiar relationship” of trust which the applicant breached when he sexually and indecently assaulted them.

I am satisfied there was no error in the sentencing judge’s analysis of the relationship between the applicant and the complainants as being within that category.

To the extent that the second ground of appeal alleges error both in the sentencing judge’s finding that the applicant used his professional position to commit the offences and, having made that finding, to have afforded less weight to the applicant's prior good character in determining the appropriate sentence, neither error is made out.

The sentencing judge found that the applicant “… took each of the victims to his flat on the pretence, or pretext, that he was only interested in them for an artistic purpose” and that he “… used his position as a professional artist in order to convince the victims to come to his flat and remove their clothing”. In that way, her Honour found he had used an aspect of his good character to facilitate the offending. The applicant does not submit that these findings are unsupported by the evidence adduced at trial, rather that they were not reasonably open on the evidence. That submission must be rejected.

HS gave evidence that she was contacted by the applicant who represented himself as a figurative artist seeking topless models. She gave evidence that it was after talking with the applicant and seeing samples of his work that she was led to believe she would be modelling for an artist pursuing a legitimate artistic endeavor. She gave evidence that having formed that belief she attended the applicant's studio and complied with his request to remove her top and bra.

KC and AY also gave evidence that they attended the applicant's studio and partially removed their clothing on the same basis. AY also gave evidence that when she hesitated in removing her clothes, the applicant sought to reassure her that he was a professional artist, “not a molester or rapist”.

It was accepted by the sentencing judge that the applicant had no record of prior convictions and, prior to the commission of the offences for which he was convicted, that he had led an exemplary life as a loving and caring family man who had made a valuable contribution to the community through his work as an art teacher and designer. This was supported by a body of testimonial and oral evidence from family members and from his former colleagues in the arts.

The sentencing judge noted that the applicant’s prior good character was a mitigating factor under s 21A(3)(f) of the Sentencing Act, as to which she said:

In my view, there is no error in this approach, it being entirely in accordance with settled authority.

In KAB v R [2015] NSWCCA 55, Wilson J (with whom Ward JA and Simpson J agreed) stated at [48]:

The rationale for good character being given less weight when sentencing for certain offences was discussed by Howie J in R v Kennedy [2000] NSWCCA 527 at [21] :

I propose that the application for leave to appeal against sentence be dismissed.