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District Court 9 October 2020

R v Fenner

[2020] NSWDC 732

Sexual offences
OFFEND

Citation: R v Fenner [2020] NSWDC 732
Court: District Court of New South Wales
Date: 9 October 2020
Judge: Weber SC DCJ

Background

The offender was a biology teacher at a private school in Eastern Sydney. The victim was a 17-year-old student enrolled in his biology classes during Years 11 and 12. The school's policy permitted senior students to contact teachers by mobile phone or social media outside school hours for academic assistance.

In early 2018, the offender began sexualising his messaging communications with the victim, escalating over time to the victim sending explicit material to him. The physical offending commenced on 4 April 2018 and concluded on 11 June 2018. The offender was 33 years old at the time.

The offender pleaded guilty to seven counts of sexual intercourse with a person aged 17 under his special care, contrary to s 73(2) of the Crimes Act 1900 (NSW). He also asked the Court to take into account eight further offences of the same character on a Form 1. The offences involved digital and penile penetration across multiple occasions, as well as oral sexual acts.

  • What was the appropriate characterisation of the objective seriousness of the offending?
  • Whether the statutory aggravating factors of a "series of criminal acts" and "planning" under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied.
  • Whether prior good character and lack of criminal record were available as mitigating factors for this category of offence.
  • How the Form 1 offences should affect the overall sentence.
  • Whether special circumstances existed justifying a variation to the standard ratio of non-parole period to head sentence.
  • What aggregate sentence appropriately reflected the totality of the criminality involved.

Decision

Objective seriousness: Weber SC DCJ accepted the Crown's submission that the offending fell in the mid-range of objective seriousness. The Court identified a gross breach of trust, deliberate grooming behaviour, exploitation of the victim's vulnerability, the offender's use of his position of power, and the number and nature of the sexual acts as the key factors supporting this characterisation. The Court also noted that the offender admitted, in evidence, that he knew his conduct was wrong at the time.

Aggravating factors: The Court declined to apply either of the two statutory aggravating factors pressed by the Crown. On the "series of criminal acts" factor, it followed R v Tadrosse (2005) 65 NSWLR 740, holding that it is contrary to principle to treat multiple sexual acts as an aggravating circumstance when the sentence is for those very acts. On planning, the Court accepted the defence characterisation of the conduct as exploratory behaviour that escalated, and treated that behaviour as inherent in this type of offence rather than as additional aggravation under s 21A.

Good character and criminal record: The Court held that prior good character and absence of criminal record carry little mitigating weight in this category of offending. The legislature was taken to have contemplated, when setting the maximum penalty for this offence, that offenders would typically be persons of otherwise good standing, such as teachers. The Court did accept genuine remorse, good rehabilitation prospects, and low risk of reoffending as mitigating factors. A 25% discount was applied for the early guilty plea.

Sentence: Finding special circumstances on account of the offender's first time in custody and the need for community-based sex offending treatment and supervision, the Court reduced the non-parole period below the standard statutory ratio. An aggregate sentence was imposed to best accommodate the principles of proportionality, accumulation, concurrence, and totality across the seven principal counts and eight Form 1 matters.

Orders Made

  • The offender was convicted of seven counts of sexual intercourse with a young person under special care contrary to s 73(2) of the Crimes Act 1900 (NSW).
  • An aggregate sentence of three years and nine months imprisonment was imposed, commencing 9 October 2020.
  • Non-parole period of two years and three months, expiring 8 January 2023.
  • Balance of sentence to expire 8 July 2024.

Key Takeaways

  • The District Court confirmed that, for offences inherently committed by persons in positions of trust and authority (such as teachers), prior good character and absence of criminal record are of limited mitigating value because the legislature likely contemplated those attributes as typical of this class of offender.
  • A gross breach of trust, grooming conduct, and exploitation of a position of power go to the objective seriousness of the offence, even where they are not separately pressed as statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Under the principle confirmed in R v Tadrosse, it is contrary to sentencing principle to apply the "series of criminal acts" aggravating factor where the court is already sentencing the offender for those very acts.
  • Form 1 offences that are serious in their own right, and substantially similar in character to the principal offences, can attract meaningful additional penalty rather than only a nominal increase, in order to reflect the totality of the criminality involved.
  • Special circumstances were found where an offender is serving their first custodial term and requires ongoing community-based treatment for sex offending, justifying adjustment of the non-parole period below the standard statutory proportion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 73(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 53A(2)(b)

Cases:
- R v Tadrosse (2005) 65 NSWLR 740
- Markarian v The Queen (2005) 228 CLR 357
- Dimian v R [2016] NSWCCA 223