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Court of Criminal Appeal 19 February 2021

Gale v R

[2021] NSWCCA 16

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS RELEVANT FACTORS ON SENTENCE OBJECTIVE SERIOUSNESS

Citation: Gale v R [2021] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 19 February 2021
Judges: McCallum JA, Johnson J, R A Hulme J (judgment delivered by R A Hulme J)

Background

The applicant was a 40-year-old high school teacher who, between April and June 2018, engaged in a sexual relationship with a 17-year-old student at the school where he had previously taught her. Although he had transferred to a different school, he had maintained ongoing contact with the victim under the guise of tutoring and academic assistance. The relationship culminated in two completed sexual intercourse offences (the subject of charges) and a third similar offence that was taken into account on a schedule.

In the District Court at Wagga Wagga, the applicant pleaded guilty and was sentenced in April 2020 to an aggregate term of 1 year and 8 months' imprisonment, with a non-parole period of 1 year. The sentencing judge assessed the objective seriousness of the offending as mid-range, noting a significant breach of trust inherent in a teacher pursuing a sexual relationship with a student.

The applicant sought leave to appeal, arguing that the mid-range assessment of objective seriousness was wrong and that the overall sentence was manifestly excessive. The Court of Criminal Appeal granted leave but dismissed the appeal.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offending as mid-range, including whether the victim's age (17 years, near the upper boundary of the offence) should have reduced that assessment
  • Whether a subsequent legislative amendment to the offence provision (the Crimes Amendment (Special Care Offences) Act 2020) was a relevant consideration on appeal
  • Whether the aggregate sentence of 1 year and 8 months' imprisonment was manifestly excessive

Decision

On the question of objective seriousness, the Court found no error in the sentencing judge's mid-range assessment. The applicant argued on appeal (though not before the sentencing judge) that the victim's proximity to her 18th birthday should have placed the offending at the lower end of seriousness. The Court rejected this, holding that while age may be relevant in some circumstances, the victim's age here did not warrant a lower assessment given the nature, extent, and context of the offending, including the sustained breach of trust by a teacher.

The applicant also sought to rely on the Crimes Amendment (Special Care Offences) Act 2020, which post-dated the sentencing and amended the elements of the offence. The Court held that this legislative change was not a relevant consideration on the appeal. Changes to an offence's elements after sentencing do not retrospectively affect the gravity of the conduct as it stood at the time the offence was committed and sentenced.

On manifest excess, the Court found that the aggregate sentence was proportionate and within the range properly open to the sentencing judge. The sentence appropriately balanced the serious breach of trust involved in a teacher offending against a student, the need for general deterrence, and the various mitigating factors found in the applicant's favour, including genuine remorse, an early plea of guilty, low risk of reoffending, and good prospects of rehabilitation. The Court also noted that the offences were classified as "prescribed sexual offences," which meant an Intensive Correction Order was not available as an alternative to full-time imprisonment.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A victim's age within the statutory range for a special care sexual offence does not automatically reduce the objective seriousness of the offending; the full context of the conduct, including the nature and duration of the breach of trust, remains relevant.
  • Legislative amendments to an offence's elements made after sentencing do not constitute a relevant consideration on a sentence appeal; the offending is assessed against the law and circumstances as they existed at the time of sentence.
  • The Court of Criminal Appeal confirmed that a substantial breach of trust by a teacher engaging in a sexual relationship with a student is a weighty factor supporting general deterrence, even where the offender demonstrates remorse, rehabilitative prospects, and low recidivism risk.
  • Where appeal grounds were not raised before the sentencing judge, the Court of Criminal Appeal will scrutinise those arguments carefully, and the absence of any objection below may undermine the force of the ground on appeal.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), the prescribed sexual offence classification meant that an Intensive Correction Order was unavailable, leaving full-time imprisonment as the appropriate sentencing option.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61H, 73(1), 73(2)
- Crimes Amendment (Special Care Offences) Act 2020 (NSW), ss 73(3)(c), 67
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Carr v R [2020] NSWCCA 214
- MRW v R [2011] NSWCCA 260
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- PWB v R [2011] NSWCCA 84; (2011) 216 A Crim R 305
- RJA v R [2008] NSWCCA 137; 185 A Crim R 178
- R v Howes [2000] VSCA 159; (2000) 116 A Crim R 249
- R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268
- Shannon v R [2006] NSWCCA 39