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Court of Criminal Appeal 11 March 2022

Fenner v R

[2022] NSWCCA 48

Sexual offences
CRIME A PPEALS A PPEAL AGAINST SENTENCE W HERE APPLICANT WAS TEACHER OF VICTIM A PPEAL ALLOWED

Citation: Fenner v R [2022] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 11 March 2022
Judge(s): Johnson J, Davies J (with whom Johnson J agreed), Bellew J

Background

The appellant was a Biology teacher at a private co-educational high school in eastern Sydney. In 2017 and 2018, he engaged in a sexual relationship with a 17-year-old student in his class, committing multiple acts of sexual intercourse with her while she was under his special care as her teacher.

The appellant pleaded guilty in the Local Court to seven counts of sexual intercourse with a young person under his special care, contrary to s 73(2) of the Crimes Act 1900 (NSW), and asked the court to take into account a further eight similar offences on Form 1 documents. The maximum penalty for each offence was four years' imprisonment.

On 9 October 2020, the District Court sentenced him to an aggregate term of three years and nine months' imprisonment, with a non-parole period of two years and three months. He sought leave to appeal that sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to treat the appellant's lack of prior convictions and good character as mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the sentence imposed was manifestly excessive.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred by failing to give any weight to the appellant's good character and absence of prior convictions. There was significant and unchallenged evidence of the appellant's good character, including testimonials from friends, family, and colleagues. While good character carries reduced weight where, as here, the offending involved a serious breach of trust, the Court held that it was still a relevant mitigating factor that warranted some consideration.

On the question of manifest excess, the Court found that the error on the first ground contributed to the overall sentence being manifestly excessive. The original aggregate sentence of three years and nine months was reduced to three years.

Davies J also noted several subjective factors relevant to the resentencing exercise. These included the appellant's difficult personal history, his experience of depression and anxiety at the time of the offending, the loss of his career as a teacher, intrusive media attention following his arrest, and his conduct while in custody, including enrolment in rehabilitative programs. The Crown accepted that loss of employment could be taken into account in sentencing, though the Court was careful to note that the loss of teaching work could not be treated as extra-curial punishment given the nature of the offending.

The Court applied a 25% discount to reflect the appellant's guilty plea and set indicative sentences for each of the seven primary counts before imposing the revised aggregate term.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 9 October 2020 quashed.
  • In lieu, the appellant was sentenced to imprisonment for three years commencing 9 October 2020 and expiring 8 October 2023, with a non-parole period of one year and ten months expiring 8 August 2022.

Key Takeaways

  • A sentencing judge's failure to give any weight to good character and the absence of prior convictions can constitute a legal error, even where the offending involves a serious breach of trust.
  • Good character does not lose all mitigating weight simply because the offending involved a position of trust. The Court of Criminal Appeal confirmed that some weight must still be given to that factor, though the weight attributed may properly be reduced.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the absence of prior convictions is a recognised mitigating factor that a sentencing court must address.
  • Loss of employment following conviction is capable of being taken into account in sentencing, but this is distinct from the concept of extra-curial punishment, which depends on the nature of the offending and its circumstances.
  • The Court of Criminal Appeal reduced the aggregate sentence from three years and nine months to three years, with the non-parole period reduced from two years and three months to one year and ten months.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 73(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A

Cases
- Kearsley v Regina [2017] NSWCCA 28; (2017) 265 A Crim R 233
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- SD v R (2013) 39 VR 487; [2013] VSCA 133; 229 A Crim R 580
- Stanton v R [2017] NSWCCA 250
- Wakim v R [2016] VSCA 301