Citation: R v Hall [2022] NSWDC 340
Court: District Court of New South Wales
Date: 1 July 2022
Judge: Bourke SC DCJ
Background
The offender, a former schoolteacher, was found guilty after a judge-alone trial of two offences of indecent assault on a male person under the now-repealed s 81 of the Crimes Act 1900. The offences were committed in 1974 against a 15-year-old student at a Catholic school in Newcastle. Each offence carried a maximum penalty of five years imprisonment.
The offending arose during a weekend "shooting trip" to a bushland location. Using the pretence of demonstrating "pressure points" of the body, the offender touched the victim's groin area and cupped his hand over the victim's genitals, then grabbed and twisted the victim's nipples. The victim brought each incident to an end by his own physical response. The victim did not report the conduct until around 2018, when he became aware that the offender had been charged with other offences involving students from the same school.
At the time of this sentencing, the offender was already serving a substantial sentence imposed by Judge Gartelmann SC for similar offending against other boys from the same school. The sentencing exercise before Bourke SC DCJ therefore required careful consideration of how any new sentence should interact with that existing sentence.
Legal Issues
- How objectively serious were the two offences, assessed in the context of the broad range of conduct that s 81 of the Crimes Act 1900 captured at the time of the offending in 1974?
- What subjective factors were relevant to the sentencing exercise?
- How should a new sentence be structured where the offences could and should have been dealt with alongside an existing sentence imposed for similar offending against other victims?
- Whether a fixed term (rather than a head sentence with a non-parole period) was appropriate given the relationship between the new sentence and the existing sentence.
Decision
Bourke SC DCJ assessed the objective seriousness of the offences in the context of the law as it stood in 1974. At that time, s 81 captured a wide range of conduct, including penetrative acts that would later attract much higher penalties as sexual assault. The offending here, while serious, was at the lower end of that broad range. Its seriousness was elevated, however, by the significant power imbalance between a teacher aged 23 to 24 and a 15-year-old student, the isolation of the location, and the court's finding that the entire trip was planned by the offender as a pretext to sexually interfere with the victim.
The court found that the offender had exploited the victim's vulnerability, including the fact that the victim's family had recently suffered a significant tragedy. The touching in each count was relatively brief, and neither incident involved the offender stopping of his own accord.
Because the offences fell within the period covered by the existing sentence imposed by Judge Gartelmann SC, and involved the same school and similar conduct, Bourke SC DCJ concluded they should have been dealt with together. The court reasoned that had these offences been before Judge Gartelmann SC, they would have resulted in some increase to the overall head sentence and non-parole period, to reflect the existence of an additional victim and to address the purposes of sentencing.
To give effect to that reasoning, Bourke SC DCJ imposed a fixed term rather than a head sentence with a non-parole period. A head sentence would have been entirely subsumed within the existing sentence, producing no practical effect. The fixed term was structured to represent the minimum additional period the offender must serve in custody, commencing after the expiry of the non-parole period of the existing sentence.
Orders Made
- A fixed term of one year and two months was imposed for the two offences.
- The term commences on 4 October 2031 and expires on 3 December 2032.
- The effect of the order is to extend by eight months the period before which the offender is eligible for parole.
- The court noted this alters the ratio of non-parole period to head sentence established by Judge Gartelmann SC (previously 67.5%), but regarded the fixed term as the minimum additional period of custody required in the circumstances.
Key Takeaways
- Where offences are sentenced after a substantial existing sentence has been imposed for similar conduct arising from the same context, a court may structure the new sentence as a fixed term commencing at a point that reflects the minimum additional custodial period warranted, rather than imposing a conventional head sentence and non-parole period.
- Assessing objective seriousness under the repealed s 81 of the Crimes Act 1900 requires placing the specific conduct in the context of the full range of acts that fell within that provision at the time, which was considerably broader than equivalent offences today.
- A power imbalance between teacher and student, combined with deliberate isolation of the victim in a remote location, are factors that elevate the objective seriousness of historical indecent assault offences, even where the physical acts themselves were brief.
- Planning and premeditation, established to the criminal standard on the evidence, formed part of the objective seriousness assessment even where the relevant conduct was otherwise at the lower end of the legislative range.
- The existence of an additional victim, not accounted for in an earlier sentence, is a factor that warrants some extension of the overall period of custody, even when that extension is achieved through careful commencement-date ordering rather than a fresh sentencing exercise from scratch.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 81 (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Culbert v R [2021] NSWCCA 38
- MRW v R [2011] NSWCCA 260
- R v MAK; R v MSK [2006] NSWCCA 381
- R v Nelson [2016] NSWCCA 130
- R v Obbens [2022] NSWCCA 109
- R v Tuala [2015] NSWCCA 8
- Sarhene v R [2022] NSWCCA 79