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District Court 3 April 2020

R v GALE

[2020] NSWDC 79

Sexual offences
CRIME SEXUAL OFFENCES AGGRAVATING FACTORS BREACH OF TRUST SENTENCING EXTRA CURIAL PUNISHMENT

Citation: R v Gale [2020] NSWDC 79
Court: District Court of New South Wales
Date: 3 April 2020
Judge: Lerve DCJ

Background

The offender was a 40 to 41-year-old secondary school teacher with 18 years of experience who had taught and then privately tutored a 17-year-old female student at a high school in Cootamundra. After being transferred to a different school in late 2017, he continued to provide academic tutoring to the victim, including feedback on Year 12 assignments, and maintained personal contact with her by phone and email.

Between April and June 2018, while the victim was still 17 years old, the offender engaged in sexual intercourse with her on two occasions: once at his home and once at the victim's grandparents' home. A third incident, taken into account on a Form 1 document, also occurred before the victim's 18th birthday. The offender was married at the time, and both parties agreed to keep the relationship secret.

The matter came to police attention in September 2018 when the offender's wife discovered an Instagram message thread on his phone suggesting a sexual relationship. She later attended the local police station and reported it. The offender was charged in January 2019 and made no comment in interview. He pleaded guilty in November 2019, and the sentence hearing proceeded in the Wagga Wagga District Court in March 2020.

  • Whether the offending fell within the mid-range of objective seriousness for offences under s 73(2) of the Crimes Act 1900 (sexual intercourse with a person aged 16 to 18 who is under the offender's special care as a tutor)
  • How the aggravating feature of breach of trust should be treated in circumstances where the trust relationship is an element of the offence itself
  • What weight to give to mitigating factors, including the victim's age within the prescribed range, the consensual nature of the conduct, the offender's good character and rehabilitation, and the impact of extra-curial punishment
  • Whether special circumstances existed to justify reducing the non-parole period below the statutory default ratio
  • How to structure the sentence, including whether an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate

Decision

Lerve DCJ assessed the objective seriousness of the offending as sitting at or around the mid-range, noting several competing factors. The victim was at the upper end of the prescribed age range (17, nearly 18), the offending occurred over approximately two to three months, there was no evidence of grooming or manipulation, and the victim was consenting. However, the court also noted the significant age gap of 22 years, that the offender was married, that the conduct occurred on multiple occasions, and that there was a Form 1 offence to be taken into account.

On the question of breach of trust, the court acknowledged that the tutoring relationship was an element of the offence under s 73(2), which meant the aggravating feature could not simply be applied as a standalone aggravating factor in the usual way. Nonetheless, Lerve DCJ found there were qualitative aspects of the breach of trust in this case that went beyond what the provision itself captured, including the extended personal relationship the offender had cultivated with the victim and her family over several years.

The court gave weight to a range of mitigating factors, particularly the offender's prior good character, his genuine remorse, his progress in rehabilitation, and the substantial extra-curial punishment he had already suffered. Those consequences included the breakdown of his marriage, public exposure in a small community, loss of his teaching career, and the significant personal and professional damage flowing from the conviction itself. The offender was entitled to the full 25% discount for the utilitarian value of his early guilty pleas.

Lerve DCJ found that special circumstances existed, primarily because of the offender's need for supervision and support upon release into the community following a period of imprisonment, and set the non-parole period at 60% of the total sentence rather than the usual two-thirds.

Orders Made

  • The offender was convicted of two charges under s 73(2) of the Crimes Act 1900
  • An aggregate sentence of 1 year and 8 months imprisonment was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999
  • Non-parole period of 12 months, commencing 3 April 2020 and expiring 2 April 2021
  • Parole period of 8 months, commencing 3 April 2021 and expiring 2 December 2021
  • The offender is to be released to parole at the expiration of the non-parole period, subject to compliance with all reasonable directions of the Department of Community Corrections

Key Takeaways

  • Under s 73(2) of the Crimes Act 1900, the tutoring relationship is an element of the offence, which limits the extent to which breach of trust can be treated as a straightforward aggravating factor; however, qualitative features of a trust relationship that go beyond the bare statutory element may still be reflected in the sentence.
  • Extra-curial punishment, including loss of career, relationship breakdown, and public exposure in a small community, can constitute a meaningful mitigating consideration where the consequences are substantial and demonstrably connected to the offending conduct.
  • A finding of special circumstances, justifying a non-parole period below the standard two-thirds ratio, can be supported where the offender will require structured supervision and community support following their first period of imprisonment.
  • The District Court applied partial accumulation of the individual sentences given that the offences involved separate occasions at different locations and times, before arriving at the aggregate sentence.
  • An early guilty plea entered at the Local Court level, and maintained at the sentence hearing, will attract the full 25% utilitarian discount, even where the offence does not carry a standard non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 73(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 37, 53A
- Crimes Act 1914 (Cth)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases
- The Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002 (2002) 56 NSWLR 146 (Form 1 guideline judgment)
- Merhi v R [2019] NSWCCA 322
- Ryan v The Queen (2001) 206 CLR 267
- Kennedy v R [2000] NSWCCA 527
- R v KNL [2005] NSWCCA 260
- R v Daetz; R v Wilson [2003] NSWCCA 216
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
- FB v R; R v FB [2011] NSWCCA 217
- Einfeld v R (2010) 200 A Crim R 1
- Greenwood v R [2014] NSWCCA 64
- Whybrow v R [2008] NSWCCA 270
- Alameddine v R [2006] NSWCCA 317
- Ridley v R [2008] NSWCCA 299
- Brown v R [2014] NSWCCA 215
- SS v The Queen [2016] NSWCCA 197
- R v Blackman and Walters [2001] NSWCCA 121
- EF v R [2015] NSWCCA 36
- R v Tsokos (unreported, NSWCCA, 16 June 1995)