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District Court 30 November 2018

R v JD

[2018] NSWDC 492

Sexual offences
CRIME CHILD SEX OFFENCES

Citation: R v JD [2018] NSWDC 492
Court: District Court of New South Wales
Date: 30 November 2018
Judge(s): Sutherland SC DCJ

Background

A mathematics teacher at a New South Wales regional high school was sentenced for a sustained course of sexual offending against four female Year 12 students, each aged 17 at the time of the offences. The offending spanned 2015 to 2017 and involved the offender progressively cultivating relationships with each student through tutoring, extracurricular activities, and social media communication before transitioning those relationships into sexual conduct.

The offender was 24 to 25 years old at the commencement of the offending. He pleaded guilty. The matter came before the District Court for sentencing on ten counts of sexual intercourse with a person under special care aged 17 years contrary to section 73(2) of the Crimes Act 1900, one count of aggravated indecent assault contrary to section 61M(1), and one count under section 61O(1)(a), with a further 13 counts and one additional indecency count to be taken into account on Form 1 documents.

The offending came to light after a school counsellor, who was a mandatory reporter, received information from a student and reported the matter to the Department of Education and police. Three further victims came forward after police arrested and interviewed the offender.

Legal Issues

  • What is the appropriate objective seriousness of the individual offences, including the aggravated indecent assault which carries a standard non-parole period under section 61M(1)?
  • How should the court assess the offender's remorse and contrition for the purpose of sentence?
  • What weight should be given to the course of conduct across multiple victims in assessing individual representative counts?
  • Whether special circumstances exist justifying a departure from the statutory ratio between the non-parole period and the balance of the sentence?
  • What aggregate sentence appropriately balances punishment, general deterrence, specific deterrence, and rehabilitation?

Decision

Objective seriousness and the nature of the offending

Sutherland SC DCJ placed the offending at a high level of objective seriousness. Each charge did not arise in isolation but formed part of a deliberate, sequential course of conduct in which the offender inveigled himself into the lives of each student through flattery, emotional support, and social media communication before escalating to sexual intercourse (at [56], [60]). The court observed that the conduct was not opportunistic but was created and cultivated by the offender, which deprived him of any argument that the offending was a one-off or isolated event (at [60]). The historical and legislative background to section 73(2) was canvassed in some detail, noting that Parliament has recognised since 1883 that teachers occupy a position of special power over students above the age of general consent, and that the 2003 amendments extended the protected age to 18 years precisely because of the vulnerability of students in this relationship (at [4], [58]).

The aggravated indecent assault under section 61M(1)

The court was required to express a view on the objective seriousness of the aggravated indecent assault charge, which carries a maximum of seven years and a five-year standard non-parole period. That charge arose from the offender pushing Victim 2 against a wall and touching her breasts over clothing despite her repeated refusals (at [29]). Sutherland SC DCJ found that, viewed individually and in the context of the ongoing sexual relationship, this offence fell below the midrange of offences covered by section 61M(1) (at [54]-[55]). The court acknowledged the apparent anomaly that a brief non-consensual touching carried a substantially greater maximum penalty than the repeated acts of sexual intercourse that preceded it, but noted this reflected deliberate legislative drafting choices (at [30]-[32]).

Remorse and subjective circumstances

The court accepted that the offender's remorse was genuine rather than a rehearsed response to being caught (at [77]). Two psychologists' reports were before the court. The offender acknowledged the power differential, the illegality of his conduct, and the harm caused to his victims. He did not seek to place any blame on the young women (at [77], [89]). The court noted significant subjective factors including a history of social insecurity, extensive use of online pornography from adolescence, and the absence of any prior criminal history (at [78]-[86]). He was assessed as presenting a low risk of recidivism (at [86]).

Victim impact and sentencing considerations

The court carefully considered victim impact statements from all four complainants, which described lasting psychological harm including depression, anxiety, difficulties forming relationships, and in one case suicidal ideation (at [61]-[73]). Sutherland SC DCJ rejected any suggestion that blame could be attributed to the victims by reason of their age, observing that the legislative concept of "special care" places full responsibility on the teacher (at [75]). The court identified special circumstances arising from the offender's rehabilitative needs, the requirement for supervision on release, and the fact that this was his first period of incarceration (at [104]). An aggregate sentence was imposed across the four indictments, with indicative sentences stated for each individual count as required (at [99]-[102]).

Orders Made

  • Aggregate sentence of five years full-time imprisonment, commencing 26 November 2018.
  • Non-parole period of three years, commencing 26 November 2018 and expiring 25 November 2021.
  • Additional term expiring 25 November 2023.

Key Takeaways

  • Under section 73(2) of the Crimes Act 1900, sexual intercourse between a teacher and a 17-year-old student constitutes a serious breach of the special position of authority that Parliament has recognised since 1883, and which the 2003 amendments reinforced by extending the protected age to 18 years (at [4], [57]-[58]).

  • Where sexual offending involves a deliberate, sequential course of conduct cultivated across multiple victims over months or years, a sentencing court will treat the individual representative counts as reflecting a high level of objective seriousness, even where each count is not elevated impermissibly as a representative charge (at [60]).

  • The District Court found that an aggravated indecent assault involving non-consensual kissing and touching of breasts over clothing, in the context of a prolonged sexual relationship, fell below the midrange of offences under section 61M(1), while acknowledging the statutory anomaly that this charge carries a significantly higher maximum penalty than the repeated sexual intercourse charges (at [54]-[55]).

  • Genuine remorse, absence of victim-blaming, low actuarial risk of reoffending, and first-time incarceration can collectively found a finding of special circumstances and inform a non-parole period below the otherwise applicable statutory ratio, even in serious multi-victim offending (at [86], [104]).

  • Victim impact statements in teacher-student sexual offending cases illustrated lasting psychological harm across all four complainants, including depression, anxiety, difficulties trusting others, and disrupted education and relationships, consistent with the court's observation that seduction-based offending causes harm comparable to more overtly violent sexual offending (at [61]-[73]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900

Cases
- JAD v R [2012] NSWCCA 73