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Court of Criminal Appeal 22 April 2022

Smith v R

[2022] NSWCCA 88

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE 15 YEAR OLD STUDENT EXPLICIT MATERIAL EXCHANGED ON SNAPCHAT TOUCHING ON THE OUTSIDE OF CLOTHING

Citation: Smith v R [2022] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 22 April 2022
Judges: Johnson J, Harrison J, Fagan J

Background

The applicant was a high school physical education teacher who, at age 26, committed a series of sexual offences against a male student aged 14 to 15 years. The offending occurred between mid-2018 and early 2019 and involved exchanging explicit images via Snapchat, physical touching over clothing, and kissing. The applicant had held her teaching position for six years at the time of the offending.

She pleaded guilty in the Local Court to three charges: grooming a child by exposing him to indecent material (s 66EB(3), Crimes Act 1900), indecent assault of a child under 16 (s 61M(2)), and sexual touching of a child aged 10 to 16 (s 66DB(a)). Additional charges of kissing were placed on a Form 1 (a mechanism under NSW sentencing law where related charges are taken into account without separate conviction).

In the District Court, Judge Shead SC imposed an aggregate sentence of 3 years and 10 months with a non-parole period of 2 years and 3 months. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by applying a standard non-parole period to the indecent assault charge (Sequence 8) when the evidence did not establish that the offence occurred at a time when that standard non-parole period was in force.
  • Whether the sentencing judge misapprehended the facts of Sequence 8 by treating the touching as skin-to-skin contact, when the agreed facts showed it occurred over clothing.
  • Whether the aggregate sentence was manifestly excessive, particularly given the applicant's borderline personality disorder and the significance of rehabilitation as a sentencing consideration.

Decision

Ground 1: Standard Non-Parole Period

The Court upheld this ground. The offence in Sequence 8 was charged under s 61M(2) of the Crimes Act. A standard non-parole period (a legislative benchmark used to guide sentencing) had applied to that provision but was removed from the relevant table by amendment effective 1 December 2018. The agreed facts established only that the offence occurred sometime during Term 4, which ran from 15 October to 19 December 2018, meaning it may have been committed either before or after that amendment took effect. Because neither transitional provision (cl 91 of Sch 2 nor s 25AA(2) of the Crimes (Sentencing Procedure) Act 1999) could be engaged when the timing of the offence was unproven, the standard non-parole period was not applicable. The sentencing judge had expressly proceeded on the basis that it applied, thereby taking into account an irrelevant consideration and vitiating the sentencing discretion.

Ground 2: Misapprehension of Facts

The Court rejected this ground. After closely reviewing the Remarks on Sentence, Fagan J was satisfied the sentencing judge made no error in characterising the physical contact in Sequence 8. The judge did not treat the touching as direct skin contact rather than over-clothing contact.

Ground 3: Manifest Excess

The Court upheld this ground. Central to the analysis was the applicant's diagnosed borderline personality disorder, which the sentencing judge accepted had materially contributed to the offending. Fagan J reasoned that where a mental condition materially contributes to offending, it reduces moral culpability and correspondingly reduces the weight given to general deterrence, while increasing the weight properly given to rehabilitation. The sentencing judge's approach gave insufficient weight to these considerations. The errors on Ground 1 and Ground 3, taken together, warranted resentencing.

Orders Made

  • Leave granted to proceed on the application filed out of time.
  • Leave to appeal granted.
  • Appeal against sentence allowed.
  • Aggregate sentence of 3 years and 10 months quashed.
  • Applicant resentenced to an aggregate term of 2 years and 4 months with a non-parole period of 1 year and 5 months, commencing 4 September 2020 and expiring 3 February 2022, with a balance of term of 11 months expiring 3 January 2023.
  • Applicant entitled to be released on parole on 4 February 2022.
  • Indicative sentence for Sequence 1: 12 months with a non-parole period of 7 months.
  • Indicative sentence for Sequence 8 (including Form 1): 1 year and 10 months with a non-parole period of 13 months.
  • Indicative sentence for Sequence 10 (including Form 1): 1 year and 10 months with a non-parole period of 13 months.

Key Takeaways

  • Where the prosecution cannot prove on which side of an amendment's commencement date a charged offence was committed, neither transitional provision is engaged and the previously applicable standard non-parole period cannot be applied by the sentencing court.
  • A standard non-parole period applies by reference to when the offence was committed, not when sentencing occurs. Applying a standard non-parole period that was not operative at the time of the offence constitutes an error of law that vitiates the sentencing exercise.
  • Where a mental condition such as borderline personality disorder is found to have materially contributed to the commission of offences, that finding reduces the offender's moral culpability and diminishes the weight properly accorded to general deterrence as a sentencing objective.
  • Reduced culpability arising from a mental condition warrants increased weight being given to rehabilitation as a sentencing purpose, and failure to reflect this adequately can render a sentence manifestly excessive.
  • The Court of Criminal Appeal confirmed that sentencing error is established where an irrelevant consideration is taken into account, even if the practical effect on the quantum may be modest.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66DB(a), 66EB(3), 80AF
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA(2); Sch 2, cl 91

Cases
- Chartres-Abbott v R [2021] NSWCCA 239
- Clarkson v The Queen; EJA v The Queen (2011) 32 VR 361; [2011] VSCA 157
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Fisher (1989) 40 A Crim R 442
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Ibbotson v R [2020] NSWCCA 92
- MH v R [2011] NSWCCA 230
- NT v R [2007] NSWCCA 143
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v ABS [2005] NSWCCA 255
- R v CMB [2014] NSWCCA 5
- R v G [2008] UKHL 37; [2009] 1 AC 92
- R v Gavel [2014] NSWCCA 56
- R v Van Ryn [2016] NSWCCA 1
- SW v R [2013] NSWCCA 255