Citation: R v Manojlovic [2020] NSWDC 221
Court: District Court of New South Wales
Date: 9 April 2020
Judge: M L Williams SC DCJ
Background
The offender, a casual teacher at a high school in Bowral, was found guilty by jury in February 2020 of two counts of indecent assault of a person under authority and three counts of aggravated sexual assault of a person under authority. The offences were committed against a 17-year-old Year 12 student who had nominated him as one of her year 12 mentors under a school program.
The offending occurred on the night of 31 March 2017 at a residential property. The student had driven to the address after the offender, whom she had been in contact with via Instagram, asked her to pick him up. When she arrived, the offender appeared intoxicated. Over the course of approximately one hour, he committed a series of escalating sexual acts against the student despite her repeated verbal objections and attempts to leave.
The offender was arrested in July 2018 and participated in a police interview. He admitted to some sexual activity but claimed the student was a willing participant and that he had been too intoxicated to recall the full details. He expressed regret, describing the events as the biggest mistake of his life. He had no prior criminal history other than traffic offences.
Legal Issues
- What was the appropriate factual basis for sentencing across five discrete counts arising from a single episode of offending?
- How should the principles of accumulation, concurrency, and totality apply when multiple offences form part of a single criminal episode?
- What weight should be given to mitigating factors, including good character, rehabilitation prospects, mental illness, extra-curial punishment, and hardship?
- Whether special circumstances existed to justify reducing the non-parole period below the statutory ratio.
Decision
Her Honour accepted the Crown's summary of facts as consistent with the jury's verdicts, those facts having been unchallenged by the defence. The offending was found to involve a serious breach of trust given the offender's position as the student's school mentor, the student's age, and the fact that the offender had locked the door and retained the victim's keys, preventing her from leaving.
On the question of concurrency and totality, her Honour applied the principle from Cahyadi v R that where the criminality in one offence can comprehend and reflect the criminality in another, concurrent sentences are appropriate. Because all five offences occurred within a closely confined temporal period as a single criminal episode, the indicative sentences for the lesser counts were ordered to be served concurrently with, or absorbed into, the aggregate term. The Crown's submission that the aggregate sentence should nonetheless exceed any individual indicative sentence to reflect the number of offences committed was accepted in part.
Her Honour weighed a range of subjective factors in the offender's favour, including his prior good character, evidence of rehabilitation, the impact of the proceedings as a form of extra-curial punishment, and any mental health considerations. However, these factors were assessed against the seriousness of offences involving a clear power imbalance, a vulnerable victim, and conduct that persisted despite the student's repeated objections.
Special circumstances were found, resulting in a non-parole period reduced below the standard statutory proportion relative to the aggregate sentence.
Orders Made
- The offender was convicted of each of the five offences.
- Indicative sentences were imposed as follows:
- Count 1 (indecent assault): 18 months imprisonment; non-parole period of 11 months
- Count 2 (indecent assault): 2 years imprisonment; non-parole period of 15 months
- Count 3 (sexual assault): 2 years 1 month imprisonment; non-parole period of 18 months
- Count 5 (sexual assault): 2 years 9 months imprisonment; non-parole period of 20 months
- Count 7 (sexual assault): 3 years 3 months imprisonment; non-parole period of 22 months
- An aggregate sentence of 3 years and 9 months imprisonment was imposed, commencing 10 February 2020.
- A non-parole period of 22 months was imposed, expiring 9 December 2021.
- Special circumstances were found.
- Further orders were made regarding a bail application pending a conviction appeal to the NSW Court of Criminal Appeal.
Key Takeaways
- Where multiple sexual offences arise from a single continuous episode of offending, the totality principle requires the sentencing court to assess whether the criminality of each offence is comprehended within the others, so that the aggregate does not exceed what the total criminality warrants.
- A teacher serving as a student's nominated mentor occupies a position of authority for the purposes of the aggravated offence provisions under the Crimes Act 1900, and that relationship is a significant aggravating feature.
- Good character, rehabilitation evidence, extra-curial punishment, and mental health considerations remain relevant mitigating factors on sentence even in cases involving serious sexual offending, though their weight must be measured against the gravity of the conduct.
- Special circumstances can justify reducing the non-parole period below the standard statutory ratio, and the District Court found such circumstances established on the facts of this case.
- Sentencing statistics, while acknowledged as a "blunt tool" by the court, may be referred to as a guide to the general range of sentences imposed for comparable offences without dictating the outcome in any individual case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases
- BP v R [2010] NSWCCA 159
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Imbornone v R [2017] NSWCCA 144
- R v Blanco (1999) 106 A Crim R 303
- R v Edwards (1996) 90 A Crim R 510
- R v Olbrich (1999) 199 CLR 270
- R v Qutami (2001) 127 A Crim R 369
- Tiatoko v R [2020] NSWCCA 43
- WLP v R [2014] NSWCCA 183