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Court of Criminal Appeal 2 December 2020

Manojlovic v R; R v Manojlovic

[2020] NSWCCA 315

Sexual offences
CRIMINAL LAW CONVICTION APPEAL CONVICTION AFTER TRIAL BY JURY VICTIM SCHOOL PUPIL OFFENDER SCHOOL TEACHER APPE AL AGAINST CONVICTION DISMISSED

Citation: Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 2 December 2020
Judge(s): Hoeben CJ at CL, Button J, N Adams J

Background

A high school teacher (the applicant) was convicted after a jury trial in the District Court at Goulburn of two counts of aggravated indecent assault and three counts of aggravated sexual intercourse without consent. The complainant was a 17-year-old student at the same school. The applicant, then aged 36, had taught the complainant across several years and had been appointed as her year 12 mentor.

The offences occurred on the evening of 31 March 2017, after the complainant drove to a property to pick up the applicant following contact over Instagram. The central issues at trial were whether the sexual acts were committed without the complainant's consent, and whether the applicant was a person in authority over the complainant, the latter being the circumstance of aggravation for each principal count.

The applicant appealed his conviction on the ground that the jury verdicts were unreasonable. The Crown separately appealed the sentence imposed by the trial judge as manifestly inadequate.

  • Whether the jury's guilty verdicts on all five counts were unreasonable or could not be supported having regard to the evidence, specifically whether the jury could be satisfied beyond reasonable doubt of the applicant's guilt given challenges to the complainant's credit and reliability
  • Whether the trial judge erred in characterising the objective seriousness of the offending as "towards the low end of the range"
  • Whether the original aggregate sentence of 3 years and 9 months (with a non-parole period of 1 year and 10 months) was manifestly inadequate
  • Whether the trial judge wrongly treated the applicant's knowledge of lack of consent as relevant to reducing objective seriousness

Decision

Conviction appeal: The Court of Criminal Appeal granted leave to appeal (required because the ground related to a question of fact) but dismissed the appeal. The Court examined the complainant's evidence carefully and found it was open to the jury to accept her account and to be satisfied beyond reasonable doubt of the applicant's guilt. Challenges to the complainant's credit and reliability did not render the verdicts unreasonable. The jury, having heard and observed the witnesses, was entitled to find as it did.

Crown sentence appeal: The Court allowed the Crown appeal. The sentencing judge's characterisation of objective seriousness as "towards the low end of the range" was found to be in error, and this error infected the sentence as a whole. The offending involved five distinct acts ranging from indecent touching through to penile/vaginal intercourse. The Court found the objective seriousness was not properly assessed at the low end, particularly given the applicant's position of authority over a vulnerable year 12 student.

The Court also examined the finding that the applicant had knowledge of the complainant's lack of consent (as opposed to mere recklessness), noting this was relevant context, but found it did not justify the degree of downward departure reflected in the original sentence. Some degree of notional accumulation of the individual sentences was warranted given the discrete nature of each offending act.

The Court identified special circumstances, based on the applicant's mental health difficulties and his history of alcoholism (including relapses while on bail), justifying a departure from the standard ratio between non-parole period and head sentence.

Orders Made

  • Conviction appeal dismissed (leave to appeal granted, appeal against conviction dismissed).
  • Crown sentence appeal allowed; original sentence quashed.
  • Aggregate sentence of 5 years and 6 months imprisonment, commencing 10 February 2020, with a non-parole period of 3 years expiring 9 February 2023.
  • Indicative sentences:
  • Count 1 (aggravated indecent assault): 20 months, non-parole period 12 months
  • Count 2 (aggravated indecent assault): 2 years, non-parole period 15 months
  • Count 3 (aggravated sexual intercourse without consent): 2 years and 6 months, non-parole period 22 months
  • Count 5 (aggravated sexual intercourse without consent): 3 years, non-parole period 2 years
  • Count 7 (aggravated sexual intercourse without consent): 3 years and 6 months, non-parole period 2 years and 6 months

Key Takeaways

  • A conviction appeal on the ground that verdicts are unreasonable requires the appellate court to examine the whole of the evidence and determine whether it was open to the jury to be satisfied beyond reasonable doubt. In dismissing this appeal, the Court of Criminal Appeal confirmed that substantial challenges to a complainant's credit do not automatically render guilty verdicts unreasonable.
  • A sentencing judge's characterisation of objective seriousness sits at the foundation of the sentencing exercise. Where that characterisation is shown to be in error, the resulting sentence will generally be infected and liable to be set aside on Crown appeal.
  • The "under authority" circumstance of aggravation under the Crimes Act 1900 (NSW) applied here to a teacher-mentor relationship with a current school student, reinforcing that authority need not derive from a formal classroom teaching role alone.
  • Where multiple discrete offending acts are established, some degree of notional accumulation in sentencing is appropriate even where the acts occurred within a single incident.
  • Special circumstances justifying an adjusted non-parole period can be established by reference to an offender's mental health needs and ongoing treatment requirements for substance dependency, including where relapses have occurred during bail.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 73(2), 578A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 294
- Evidence Act 1995 (NSW), s 44
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Markarian v The Queen (2005) 228 CLR 357
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- CMB v Attorney General for New South Wales (2015) 256 CLR 346
- Bugmy v The Queen (2013) 249 CLR 571
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen (2000) 202 CLR 321
- Griffiths v The Queen (1977) 137 CLR 293
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Everett v The Queen (1994) 181 CLR 295
- Hampton v R [2014] NSWCCA 131
- Gibson v Regina [2019] NSWCCA 221
- Antouny v R [2020] NSWCCA 203
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Harkin v R [2020] NSWCCA 242
- Maughan v R [2020] NSWCCA 51
- KSC v R [2012] NSWCCA 179
- Mulato v R [2006] NSWCCA 282
- Hawi v R [2014] NSWCCA 83