Director of Public Prosecutions v Barton (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

RYAN BARTON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2024
DATE OF SENTENCE:	2 September 2024
CASE MAY BE CITED AS:	DPP v Barton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1402

REASONS FOR SENTENCE
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Subject:                Criminal law - Sentence upon plea of guilty.
Catchwords:         Grooming for sexual conduct with a child under 16 - Sexual assault of a
child under 16 - Sexual assault of a child under 16 or 17 under care,
supervision or authority - Sexual penetration with a child aged 16 or 17
under care, supervision or authority - Persistent sexual abuse of a child
under 16 - Course of conduct charges - Applicable standard sentence -
Serious offender provisions - Impact of significant delay - Prior good
character – Lack of criminal history - Good prospects of rehabilitation.

Legislation Cited: Sentencing Act 1991; Criminal Procedure Act 2009; Crimes Act 1958.
Cases stated: DPP v Ellis [2016] DCC 1246; DPP v Polat [2020] VSCA 174; Meadows
v The Queen [2017] VSCA 290; Clarkson [2011] VSCA 157; Clifton v
The Queen [2021] VSCA 111; Poursanidis v The Queen [2016] 50 VR
681; Hester v The Queen [2023] VSCA 41; Crawford v The Queen [2018]
VSCA 113; DPP v Tullipan [2021] VSCA 191; Pickford v The Queen
[2019] VSCA 195; McCrae v The Queen [2017] VSCA 340; Brown v The
Queen [2019] 59 VR 462; Lockyer v The Queen [2020] VSCA 321; DPP
v Amaral [2020] VSCA 290; DPP v Beck [2021] VSCA 88; DPP v Frank
[2021] VSCA 163; Wilio v R [2023] VSCA 88; McPherson v R [2021]
VSCA 53; Clark v R [2022] VSCA 89, Victorsen v R [2020] VSCA
248; DPP v Koumas [2021] VSCA 215; DPP v Conos [2021] VSCA
367; DPP v Hum [2022] VSCA 57; Lugo v R [2020] VSCA 75, Jenkins v
R [2021] VSCA 65; Nachar v R [2021] VSCA 242; DPP v Nuige [2022]
VSCA 14; Sims v R [2022] VSCA 114; Newton v R [2023] VSCA 22;
Carlton v The Queen [2008] NSWCCA 244; McClaren [2012] NSWCCA
284; DPP v Waring [2021] VCC 1419; The Queen v LD [2009] VSCA 31;
DPP v Patterson [2009] VSCA 222; R H McL v The Queen [2000] 203
CLR 452; Gordon v The Queen [2013] VSCA 343; DPP v Hopson [2016]
VSCA 303; DPP v Conos [2021] VSCA 367; Bouris v R [2021] VSCA
243; Campbell v The Queen [2019] VSCA 158; Henderson v The King
[2024] VSCA 78; DPP v Engler [2023] VCC 1600; DPP v Neale VCC
1431; DPP v Foggatt [2023] VCC 121; Murphy v The Queen [2022]
VSCA 259; DPP v Murphy [2021] VCC 1525; DPP v Mendoza [2021]
VCC 1712; DPP v Williams [2020] VCC 2065; DPP v Robards [2020]
VCC 1665; DPP v DDJ [2009] 2 VR 444; Worboys v The Queen [2021]
VSCA 169; DPP v Ooms [2023] VSCA 207; Fichtner v The Queen [2019]
VSCA 297; Ryan v The Queen [2001] 206 CLR 267; Dung Yat and The
King [2024] VSCA 93; Bekinko v The Queen [1999] 107 A Crim R 415;
The Queen v Faure [2005] VSCA 91,12 VR 115; R v Males [2007] VSCA
302; R v Stevens [2009] VSCA 81.

Sentence: Total Effective Sentence of 9 years and 9 months imprisonment with a
non-parole period of 6 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Crennan	Ms R. Marques
For the Accused	Mr P. Holdenson	Mr A. Furstenberg
Ms E. McKinnon

HIS HONOUR:

1Ryan Barton[1], you have pleaded guilty to six charges on the indictment, two charges of grooming for sexual conduct with a child under the age of 16; one charge of sexual assault of a child under 16; one of Sexual assault of a child under 16 or 17 under care supervision or authority; one charge of Sexual penetration of a child under 16 or 17 under care supervision or authority, and one charge of Persistent sexual abuse of a child under 16.
[1] A pseudonym.
2Before proceeding to sentence I will say this to you Mr Barton, later in your sentence I will deal more fully with the chronology of this matter and the delays which have occurred between your offending and your sentence today. I do so, because in your case the delay is out of the ordinary and it impacts on your sentence. Apart from the delay that has occurred up to your pleas, there has unfortunately occurred a further delay from that date up to today which has not been caused by you in any way, it has been due to me having to be treated for a very serious illness which has prevented me from finalising this matter.
3I should indicate in no uncertain terms that I have taken this further delay into anxious consideration given your remand in custody, awaiting for this sentence, which goes to add to the abovementioned delay with which I shall deal later in the sentence. The offending was committed against two victims. When these reasons for sentence are published their names will be anonymised as required and a pseudonym will be applied to your name to protect their identities by association with yours.
4You were aged between 33 and 36 at the time of the offending, you are now 40 years of age. At the relevant time you resided in the eastern suburbs of Melbourne with your wife and your child and all relevant times you were a teacher employed at an eastern suburban college which ran classes from prep to Year 12, I shall refer to it as 'the college'. You started there in 2013 as a physical education teacher, which you taught from primary to secondary and through to VCE level. You also taught VCE psychology. In 2014, you became the physical education and sports coordinator and in June 2018 you became the Year 9 and 10 coordinator relinquishing your role as PE and sports coordinator in 2019.
5As part of your role, you had unrestricted access to the middle and senior school at the college which included the junior IT lab, the reception and admin area as well as the gymnasium. Each year of your employment at the college you were required to sign a staff code of practice which was part of the depositional material. This included a detailed code of conduct as well as obligation to undertake training in mandatory reporting in child safety. The code of practice included detailed sections on relationships with students, being alone with students, online conduct with students, and social interactions with students, which as a
Christian college the code described, together with physical interactions, as part of the 'moral conduct' expected by the college. Some detailed guidelines at 3.3 of the code, proscribe grooming like conduct of teacher towards student.
6I refer to this code not because its violation aggravates your offence in any sense, or is an offence in itself in anyway, rather to contextualise your offending in a sense of what it was you ignored or obligations you wilfully set aside in order to gratify your sexual desires.
7There was no contention made on your behalf that you did not realise that what you were doing was wrong, indeed such a submission could not have been made given the factual circumstances. This is a contextual detail in the assessment of the calibre of the breach of trust and moral culpability involved in your offending which I consider to be high.
8There is in this matter much care required to avoid double punishment in relation to Charges 3 and 4, which contain in their elements themselves acknowledgement that both victims were under your care, supervision or authority. The inherent breach of trust in the charges is expressly recognised, and is not an additional feature of aggravation, but rather an explicit element of the charge. In other words, the offending under Charges 3 and 4 constitute a breach of trust and that is implicit in the elements of each one of those two charges. However, I must still make an assessment on the level of that breach of trust, as an example see DPP v Ellis [2016] VCC 1246 per His Honour Chief Judge Kidd at [8] and following.
9In undertaking that assessment, I note that none of the remaining charges explicitly carry the element just mentioned and this requires me to expressly find that your offending in relation to those constitutes a breach of trust, which I do so find and therefore an aggravating factor for each of those Charges 1, 2, 5 and 6. This breach I find also to be of high level. This makes for a somewhat complex and difficult sentencing exercise because of this difference between charges 3 and 4 and the rest, because also Charges 1 and 2 relate to victim 1 and five and six to victim 2. Charges 3 and 4 also relate to victim 1. The breach of trust involved in Charges 1, 2, 3 and 4 relate to your position as the victim's teacher, a significant position of authority and trust towards the students. But also in respect of the community, both of which are entitled to have confidence in the very significant trust placed upon teachers.
10So I wish to make clear that because of the way the indictment is structured, that I do aggravate your conduct by the aspect of breach of trust in relation to Charges 1 and 2 and victim 1, but consciously avoid double punishment in relation to Charges 3 and 4 by that aspect. The simplest and in my view common sense approach is to make clear that generally the level of breach of trust is high and that it aggravates Charges 1 and 2, thereby rendering the offences and therefore their sentences more serious due to the aggravating factor, but though of the same calibrate it does not aggravate Charges 3 and 4 which are serious charges of themselves, containing the element of care, supervision or authority, which gives rise to the assessment of the breach of trust undertaken. And in this sense double punishment for Charges 3 and 4 is avoided.
11Alyson Larson[2] was 14 to 16 years of age and in Year 9 to 11 when the offending occurred, Charges 1-4, between 1 July 2017 and
30 September 2019, a period of some 27 months. Larson was in your VCE psychology class in Year 11.
[2] A pseudonym.
12Ana Stark[3] was aged between 13 and 15 years at the time of the offending. She completed Year 8 in 2019 but was not in any of your classes. And she left the college at the end of 2019 and attended another college for Year 9 in 2020. The charges relating to her are Charge 5 and 6 in that period between 1 February 2019 and 16 October 2020, some
21 months. It is notable that there is an overlap of some eight months in 2019 during which time you committed offences against both victims separately, but in that common period of time.
[3] A pseudonym.
13The summary of prosecution opening for plea was tendered and exhibited and appropriately detailed in its 33 pages. I will append it to my sentence. I will outline the circumstances of your offending on the basis of this document by summarising it.
14Larson was in Year 5 when you commenced teaching at the college. She described the friendly relationship with you involving greetings and acknowledgements in the hallway. By the time she was in Year 9 in 2017, she observed the change in your behaviour towards her. You would walk close to her or brush past her in the gym. In 2017, her sister attended a school camp where you were supervising teacher and as a result had your phone number. She gave that number to the first victim so Larson could inform you that her sister was sick and could not attend a sporting event. You responded in part with, 'I didn't see you much today.' Larson answered, 'Sorry, I was busy with schoolwork.' From then on you messaged Larson every couple of months.
15Charge 1 of grooming proceeds from 1 July 2017. She had been training and was returning from the gym. You walked beside her. You showed her your phone with WhatsApp message displayed and said words to the effect of, 'Look how sparse our messages are.' Larson told you she had been really busy, she had the impression you wanted the two of you to talk more often. I have little doubt this was your intended message to her. Throughout 2017 and 2018 you continued to message her on WhatsApp. In November 2018, Larson was with friends after school waiting for a lift. She was talking about a family party and that she didn't want to wear a particular dress to it.
16You were nearby and asked her to send you a picture of her wearing the dress. She did not wear it to the party. You messaged her later, 'Well, are you going to show me the dress?' You encouraged her to send you the picture, which she did not wish to do. She ultimately put the dress on and sent you a photo. You replied words to the effect, 'Fork, fork, fork, you look so good.'
17In the following days you again messaged with references to the photo, words to the effect of, 'I want to take you to the beach in that dress.' And, 'I want to touch you all over your body, feel your waist and your bum.' When Larson responded that you would not find it nice, you told her you still wanted to feel her. Larson describes feeling uncomfortable, but also, 'a bit special'. She was quite freaked out and thought she had to play along because she knew she was going to see you at school.
18You then proceeded to ask her to send you more photos in different outfits including photos in her underwear and nude photos. She sent about 20 photographs in different outfits and her underwear. These encompass the matters giving rise to Charge 1, grooming for sexual conduct with a child under the age of 16, that is, intending that the communication would facilitate her engaging or being involved in the commission by you of a sexual offence.
19This offence carries a maximum of ten years' imprisonment. The indictment in relation to Charge 1 particularises this grooming as dated between 1 July 2017 and 4 December 2018, so some 17 months. The prosecution submitted the offending the subject of Charge 1 should be seen as gross breach of trust in the context of a school teacher's conduct in respect of a young student where it was said there are vulnerabilities on the part of the victim. You complimented her appearance when she expressed some unhappiness with it. This made her feel special.
20The defence highlighted the nature of the communication and submitted that it fell at the bottom of the range. In assessing its gravity, I accept that what is outlined in the agreed facts does not contain overt threatening language, overtly sexually coercive tones. However, in my view it is of little assistance in this assessment to refer to other features which might have been but were not present.
21This communication had all the features which make grooming so egregious: It is cynically designed to achieve a purpose; It was increasingly sexualised communication, which you hoped would lead to sexual activity by manipulative techniques; your repeated and increasingly explicit communication was knowing exploitation of a vulnerable girl in your pursuit of ultimate sexual gratification, despite being fully aware that you were doing was illegal and morally wrong. It was demanding, abusing an established relationship of power. By the end of 2018 you and Larson messaged daily.
22Defence conceded that the grooming led to the offending of sexual assault, the subject of Charge 2. It was submitted by the defence in oral argument that there should be full concurrencies between Charge 1 and 2 pursuant to s16 of the Sentencing Act 1991. In written submissions it was said the offending under Charge 1 led to and thereby facilitated as was intended the offending of Charge 2, 3 and 4. The submissions emphasised the principle of totality and the consequence that the sentence on Charge 1 should be wholly concurrent in accordance with the statutory presumption contained in s16(1).
23I note however that by Charge 3, 4, 5 and 6, you will be sentenced as a serious sexual offender under the serious offender regime part 2A of the Sentencing Act. The written defence submission included at paragraph 55 Charges 3 and 4 in relation to concurrency, and it is in error because s16(1A)(c) specifically provides that s16(1) does not apply to a term of imprisonment imposed on a serious offender within the meaning of part 2A. Including for a course of conduct charged under s6D(2A)(c).
24I agree that the three cases cited in this context of the grooming charge are of little assistance, in terms of current sentencing practices, which are but one factor to be taken into account and not a controlling factor. Your grooming was not extensive or threatening but it was manipulative and achieved its intended purpose. You clearly knew its impact yourself when later you asked Larson to delete them, in order to avoid detection, which you sought on a pretext of protecting her. In my view it would be incongruous to order total concurrency.
25Section 16(1) provides for concurrency, 'unless otherwise directed by the court' which envisages exceptions. In my view the offence of Charge 1 is directed to a different mischief, distinct criminality from that covered by Charges 2, 3 and 4.
26The sentence on Charge 1 will be moderate and proportionate to the offence as particularised, but it is important that offending of this kind in Charge 1, be met with appropriate punishment. The charge carries a maximum of ten years' imprisonment which works as a yardstick and indicates the legislators and community abhorrence at the exploitation of children. A moderate cumulation of the sentence will apply for that discreet offence.
27Between the 5th and 10 December 2018, Larson was ill and officially away from school. During one of those days however she waited for her sister outside the college gym in a pick-up area. You were nearby. When other students left, you and Larson remained. This was the first occasion in the course of conduct until 21 March 2019 when you committed a sexual assault on Larson on four occasions. The first was in an office near your office in the school building.
28You pulled her t-shirt towards you, she pulled away from you and as she did so, you brushed her buttocks with your hand. You told her to walk to the gym ahead of you to avoid suspicion. Larson was 'freaking out' as she said in her statement and called her mother who was shopping nearby. You walked into the gym's purportedly to get a juice drink for Larson but when you got there you pushed Larson up against the wall. You told her, 'You smell nice, your hair is soft.' You then touched her buttocks with both hands. This is the second act in relation to Charge 2.
29You then placed yourself, with your back to the wall and moved your hand up and down on her vagina over her underwear. Larson describes herself, 'as completely frozen and scared.' This is the third instance. When you heard other students enter the gym you pushed Larson back. By this stage in 2019 the messages you sent her were sexual in nature including what you wanted to do to her body, what you wanted her to do to you, including while marking papers with her under your desk. The fourth instance was also in 2019. You again approached her at the gym's drop off area. She was wearing a school dress. While in the corridor of the gymnasium you lifted her dress and rubbed your hand up and down her vagina over her underwear. She walked out when her mother contacted her with a text message.
30I note that Charge 2 involved the commission of four acts, three of these committed on one occasion and the fourth being committed separately and subsequently. Charge 3 involved the commission of 13 acts on seven separate occasions and Charge 4 involved four acts on
four separate occasions. Three of these four acts the subject of
Charge 4 occurred on occasions of the acts or an act the subject of

Count 3. Within this circumstantial framework the measure of totality is an important consideration which I have taken into account.
31Charge 3 of sexual assault of a child under 16 of 17 under care, supervision or authority is also a course of conduct charge and encompasses 13 occasions. I will summarise these circumstances. The first occasion was in April to June 2019. Larson was 16. It occurred in an office in the gym. You sat at a desk with your legs opened and gestured to Larson to come over which she did not wish to do as she was scared. You grabbed her waist and pulled her towards you. You put your hands on her buttocks over her leggings briefly.
32You positioned yourself behind her and bent her over. You then pulled down her leggings and you rubbed your erect penis against her buttocks in what she described as, 'dry humping'. During this act her mother rang her. You were still holding her and told her to answer the phone, which she did while you continued dry humping her. I consider this to be a
self-gratifying direction on your part, which much have been demeaning to Larson.
33You stopped when she hung up and she pulled up her leggings and ran out of the gym office. This was the second instance. The third was in May 2019 when you asked Larson to assist you to score a badminton competition. You drove the students, including Larson, to a sports centre for the interschool event. After the competition you drove back to the college. Larson was sitting at arm's length to you and during the drive you touched her right thigh and moved your hand up to her vagina and rubbed it over her shorts. She pushed your hand away and you rested your hand on her thigh for the rest of the trip.
34The fourth to seventh instances occurred in July of 2019 after a message to her, 'Are you coming over or what?' and other messages arranging for you to pick her up from a shopping centre where she was shopping with her mother. You picked her up in your car and drove to your home. Aware of the possibility of discovery you instructed her to switch her phone to aeroplane mode to avoid her mother tracking the two of you. Once inside the house you pushed Larson up against the wall, then manoeuvred her in front of you with her back to you. You kissed her neck and put your hand into the right pocket of her jeans, that was the fourth instance.
35The fifth instance followed on from there. You pulled on her belt and said words to the effect, 'Why is this belt stopping me.' She told you it was her father's belt. You pushed her with both hands by her hips forward towards your bedroom. Once there you told her to take off her shoes and to unbuckle the belt. You unbuckled her pants and pulled them down. You then got into bed and told her to get in. You climbed on top of her and kissed her on the lips after which she turned her head. She was feeling uncomfortable as you touched her leg. The sixth instance followed. You told her to take off her sweater and you continued kissing her and you kissed her all over her body. She was still wearing underwear and you kissed her thighs.
36To make clear the seventh instance of Charge 3 happened in this sequence of events. The sexual penetration constituting the first occasion the subject of Charge 4 sexual penetration of a child under 16 of 17 under care, supervision or authority, occurred proceeding the seventh instance of the course of conduct for Charge 3, as I will summarise it.
37Larson was squirming and moving her body away from you. You were now lying next to her, and you tried to calm her. As Larson tried to retrieve her clothes from the floor you used both hands to grab her legs. You spread them and pulled her closer to you from behind. You pulled her underwear to one side and put your finger inside her vagina. She was frozen trying not to cry and experiencing pain. You did this for two or three minutes. You were groaning as you did this to her. When you removed your finger you told her she, 'tasted sweet'. This was the first occasion in Charge 4. You then put your tongue on Larson's vagina by licking it approximately three times. When you stopped you said words to the effect of, 'I wish I took a picture now.' This was the seventh instance of Charge 3.
38You pushed her away from you and got out of the bed. You tidied the bed and remarked annoyed, 'Why did you have to drop so much hair?' You then left the house and you took Larson back to the shopping centre. She felt pain from her vagina as she walked and had pain when urinating on that occasion.
39In the same month July 2019 at a time when you were offending against both victims, you told Larson you could not talk on WhatsApp because, 'they might be listening to me.' And, 'I've done something wrong. I'm calling you to protect you.' By this time, you had engaged in the persistent sexual abuse of the second victim having also groomed her for sexual contact. You told Larson that the second victim, a former student at the college, had messaged on Facebook but that had ‘set something off’ which had blocked you from all social media.
40You told Larson to delete all conversations and photos she had sent to you, 'to protect herself'. She could be in trouble you told her and she might have to go to court. Larson deleted everything as you told her. This conduct highlights the measure of your moral culpability, in that you had an opportunity to desist from your criminality upon reflection at that time, when acknowledging your wrongful behaviour, but you did not desist, neither as to victim 1 nor as to victim 2.
41In late July 2019 late at night, you called Larson via WhatsApp and you told her you missed her and as the conversation became more sexual you told her words to the effect, 'I wish I could be inside you.' As the Court of Appeal expressed in DPP v Polat [2020] VSCA 174 (‘Polat’) at paragraph [24]:
'An offender who reoffends after an interval of time is more culpable on that occasion by virtue of the fact that he's had the opportunity, during the intervening period to reflect on his conduct.'

42To decide, as you did, to resume sexual abuse of a child which you knew was wrong, is conduct calling for stronger denunciation and heavier punishment on each successive occasion. This proposition is applicable to the later offences involving Larson and in relation to the offence involving Stark with those later offences each becoming progressively more serious, particularly Charge 6.
43The eighth occasion for Charge 3 arises by your invitation to Larson to help you mark psychology exams in your home. This was in August 2019. You took papers and a laptop to your bedroom and gestured to Larson to follow you. Larson was laying on her stomach on the bed marking the papers. She then felt your erect penis against her buttocks, you were dry humping her. What followed was the second occasion in relation to Charge 4. You used both hands to take her leggings off.
44You turned her over. You used your hand to spread her legs apart. You pushed her underwear to the side and inserted your finger into her vagina moving it in and out. Larson was in pain and exclaiming out loud that she was but you did not stop. You continued penetrating her vagina for about three to four minutes. When your front doorbell rang you pushed her off the bed and told her to get in a closet. When you returned to the bedroom Larson picked up her clothes and shoes and you drove her home.
45On another date in July or August 2019 in the gym office, you again caressed her buttocks and vagina. This was the ninth instance in
Charge 3. And then you reached down inside in her bike shorts and rubbed around her vagina, this was the tenth instance in Charge 3. In late August, the 11th, 12th and 13th instances under Charge 3 took place as well as the third and fourth instance under Charge 4.
46The college held an optional ski camp. It was organised by you. Larson attended. While on the drive there you messaged Larson saying words to the effect, 'I wish you were sitting on my lap'. She replied, 'Agree'. On the second day Larson approached some other teachers requesting change in terms of monetary exchange to repay a friend. She was told to see you in your cabin. She came to your cabin and when she entered you were lying on your bed. She told you the reason for being there. As she was speaking, you grabbed her vagina, she moved back but you continued touching her on her vagina, grabbing and pinching her vagina over her pants, instance 11. You told her you did not have change and she left.
47On one of the following days Larson messaged to see if you were alone in your cabin. You responded that you were. She came to your cabin and asked if you had a Panadol, an analgesic tablet, you told her you did not. You were lying on the bed and asked her to get on the bed next to you. She sat on the bed next to you. You told her to kiss you. She responded declining because she was not confident with kissing and you told her you would teach her. You then pulled Larson down so she was lying on the bed. You took her pants off and pulled her underwear to the side. You then penetrated her vagina with your finger. Larson said it felt like you made a hook with your finger moving it around her vagina. You removed it after two or three minutes and told her she could go. This is the third instance under Charge 4.
48When on the ski camp, students had to hand in their phones to the teacher each night. On the last night Larson messaged you to hand in her phone and then came to your cabin. When she got there you were standing in the doorway in a t-shirt and underwear. She put her phone in a basket which had other phones. As she did you closed the door and from behind you kissed her neck, 12th instance Charge 3, then you touched her vagina over her pants, 13th instance Charge 3.
49You then moved her towards the bed and pushed her onto it and proceeded to lay on top of her. You pulled her sweatpants and underwear down in one motion, then you spread her legs apart and penetrated her vagina with your finger. Fourth instance Charge 4. Larson got out of bed and pulled up her underwear and pants. You opened the door and she left.
50No physical contact occurred between you and Larson thereafter. You continued to message her into 2020. In April you sent a photo of your new baby. You sent other messages ranging from, 'how are you' to 'I want to eat you out'. On 21 October 2020 Larson told her VCE coordinator as well and the wellbeing coordinator that you had touched her under her skirt. The police and Larson 's mother were contacted and a week later she made a statement to police detailing your offending.
51In relation to the second victim in Charges 5 and 6 on the indictment, the circumstance of your offending can be summarised from the prosecution opening. In relation to the grooming for sexual conduct of a child under the age of 16, Charge 5, Ana Stark was in Year 7 in 2018 at the college. You did not interact with her that year. At the start of 2019 when Stark was in Year 8, you started talking to her generally about schoolwork and sport, often while in the school gymnasium. Stark liked the way you looked at her as it made her “feel good”. In her statement, Stark states that at the time she, 'kinda felt lost'. She talked to you about her issues at home and her parents. You listened and gave her support. But after she confided in you, 'stuff started happening' according to her statement.
52Relying upon the prosecution opening this is the factual basis on which to sentence you in relation to Charge 5. The defence submitted in assessing the gravity of the offending I would be duty bound to find the gravity extremely low with the scope of the offending quite extremely limited, allowing the court to impose a very or most moderate sentence. When one has regard to what was termed the ‘quantum of the offending’ notwithstanding s6E of the Sentencing Act which relates to matters pertinent to sentencing a serious offender, the defence submitted there should be no cumulation as between the sentences for Charge 5 and 6. They should be, argued the defence, wholly concurrent.
53While it is clear that what followed from this period of communication, which period is unable to properly be described by way of a timeframe, is the conclusion that the grooming led to the offending, the subject of Charge 6, without more information it would be unreasonable to speculate as to its extent, frequency and content, being mindful that the period particularised in Charge 5 are the months of February and March and the first five days of April in 2019. Beyond linking the grooming, to which you have pleaded guilty to the subsequent contact offending, it is not proper or possible to infer what kind of communication and the level of exploitation or manipulation which was used by you in these exchanges.
54From the summary by way of reference to Stark confiding in you about her family life, what may be inferred is that a likely building of trust initially occurred. Trust which often is a necessary part of the grooming process. See Meadows v The Queen [2017] VSCA 290 at [42] and [45]. However I am not persuaded by a mere ‘likely scenario', and not prepared to draw what I consider to be a speculative inference in this case.
55Nevertheless, grooming for sexual conduct with a child is acknowledged by the plea and the charge will attract the penalty which I consider should be concurrent with Charge 6, despite the provisions of s16(1) which as I have mentioned above contain an express presumption as to cumulation. The section includes the words, 'unless otherwise directed by the court' and I have endeavoured to express reason as to this direction.
56While the prosecution summary does refer to an analysis of your phone and contains an annexure, Annexure A with a sample of the text messages between you and Stark, these refer to the text messages sent between you and Stark and located on your phone in a period wholly after the period particularised in Charge 5 and related in the opening to the submissions only about the gravity of Charge 6. Charge 6 of persistent sexual abuse of a child under 16 is particularised in the summary of facts by reference to the circumstances of 12 separate acts of sexual abuse as listed in the Indictment as (a) to (l), over the period 24 April 2019 to 16 October 2020. I will summarise each instance briefly, but they are set out fully on p. 18-30 of the opening.
57During the school holidays at the end of term 2 of 2019, Stark travelled overseas with her family. The day before leaving, Stark came to your office at the college, at which time you asked her, 'How can I talk to you?' to which Stark indicated, 'You could communicate via Facebook Messenger'. When Stark tried messaging you, your account had disappeared. You told her later this had occurred because the words ‘teacher’ and ‘school’ had appeared in some of your texts and that you had concluded the age gap between you had been discovered.
58Stark was a virgin and told you she was, 'really scared to be fingered or anything'. You reassured her and told her of different levels of touching from shaking hands to sexual intercourse. Between the above dates you engaged in various sexual acts with Stark. The offending began by you touching Stark at school, to arranging to meet her at night in order to engage in sexual intercourse.
59The 12 acts the subject of Charge 6 occurred at the college, in your home, at your family's beach house and in your car. On an occasion between 24 April 2019 and 28 June 2019 you sat next to her on bleachers in the gym as she sat with friends. You put your hand in her sports jacket she had over her legs and touched her upper thigh.
60During May 2019, Stark was seating on the bleachers watching a netball game. You sat next to her and put your hand under her skirt touching her buttocks. When Stark told you that she had told a friend about you touching her, you told her that she 'should look out' and 'shouldn't think about herself but also about you and how it would affect you if she told people'. This I consider to be a manipulative warning to Stark which highlights the power imbalance inherent as between you and her.
61You started meeting at night. You would park near her home and Stark would make her way down from her room by a balcony and a fence after her parents had gone to sleep, which meant she could leave around
2 am while you would wait for her outside her home. At one point you brought a ladder from school so she could climb back up. It was only after several months of this that she found a different way out which meant she could leave the family home around 9.30 pm. The level and length to which you invested in your selfish gratification exemplified by these arrangements can only be described as breathtaking.
62In September of 2019, Stark snuck out of her home and you drove her to the college at 2 am. On sports mats which you laid out in the college gym you kissed her, inserted your finger into her vagina, moving it in and out. She told you she was really scared. You told her you would be gentle and use only one finger and told her words to the effect of, 'You're tight'. Stark was then lying on top of you and you positioned her so her vagina was over your face, then you inserted your tongue into her vagina after saying, 'Can I taste your eggs?' You then licked her vagina and clitoris.
63During an occasion between 1 September and 31 October 2019, you inserted your finger into her vagina while in the wellbeing room at the college around 2 am. You went in, ‘harder and deeper’ as she described in her statement. She noted blood after you removed your finger. Between 1 November 2019 to 31 December 2019, you drove Stark to a park, you laid the seat down in your car, you put a condom on your penis and penetrated her vagina with your penis. This was only one of two occasions that you wore a condom when engaging in sexual intercourse with Stark.
64On 30 December 2019, your wife travelled alone to Israel on a study tour for nine to 10 days duration. During these days you took Stark to your home on each night consecutively, you then drove her home at around 4 am. On the first occasion during that period, you tried to penetrate her vagina by your penis while you were on top of her on an outdoor couch on the deck. Stark told you the couch was itchy and did not want to have sex and you desisted. On another occasion during that period, you both slept in the master bedroom and you penetrated her vagina with your penis, at about 4 am before driving her home.
65On a further occasion in that period, you brought out a mattress to the living room and you had sexual intercourse there. Another night during this period you were again on a mattress in the living room and you engaged in penile vaginal intercourse after which you penetrated her anus with your penis. Stark said words to the effect of “no, don't, it hurts”. You suggested you obtain something to help anal penetration and you obtained some coconut oil which you rubbed onto your penis and you then inserted it into her anus. After this was over you showered together, you kissed her during the shower.
66On a further occasion in that period, you carried Stark to the kitchen counter, you penetrated her vagina with your penis briefly, before withdrawing it as it was too difficult to continue in that position. On a further occasion in that period Stark was again seated on the kitchen counter when you inserted frozen blueberries, one at a time into her vagina. You then ate the blueberries from her vagina and then kissed her. After these nine or ten days you then travelled to Europe where you met your wife and holidayed in Rome and Paris.

67On 20 June 2020, you and Stark had sexual intercourse in your car. On this occasion you ejaculated inside her vagina. When asked by Stark why you had done that you said words to the effect, 'I couldn't help myself.' You quickly dressed and you drove Stark to a
Chemist Warehouse store where she bought the morning after pill. Stark went into the pharmacy alone and gave a false name and date of birth, filled out a form and was counselled about the use of the medication by the store manager.
68During the night of 7 July 2020, you took Stark to your family's beach house. You told her you would tell your wife you had gone to the peninsula to play golf, but the course was closed due to COVID. Stark left her house around 8.40pm. Once at the beach house in your bedroom you kissed her. You tried to insert your penis into her vagina but you were unable to do so. You then turned her over.
69You penetrated her vagina from behind. The same night you penetrated her vagina while you stood at the end of the bed. You then both fell asleep on the couch in the living room and when you woke up you again had sexual intercourse on the couch and then with Stark standing against a wall, penetrating her vagina with your penis. You also took her to the kitchen and you inserted your tongue into her vagina as she stood on the kitchen counter.
70On an occasion between 16 July and 18 September, you inserted your penis into Stark 's vagina while in the gymnasium office at the college after school. When you were close to ejaculation, you pushed her on her shoulders with her head towards your penis and ejaculated in her mouth. On 14 October 2020 Stark left her home at about 9.30 pm and met you at your car. You laid down on the front passenger seat with Stark and inserted your penis into her vagina in that position. You then performed oral sex on her, inserting your tongue into her vagina. You put your penis into her mouth for a while and then you again penetrated her vagina.
71On 16 October you requested Stark to wear the school dress of the college she was now attending, that evening when you were to meet. You appeared, 'a bit sad' that she told you she was not going to wear it, she explained in her statement, so she ended up wearing it. She snuck out of the home at 9.30 pm and you drove her to your college and there disarmed the alarm at 9.51 pm. In the library you've kissed her over clothing, pushed your erect penis against her vagina. You then inserted your penis into her vagina.
72You had sexual intercourse on a library table before moving to
two benches which you pushed together to fashion a makeshift bed. You told Stark you wanted to have sex with her while she was wearing her school dress. She lay on top of you and you had sexual intercourse. You then performed oral sex on her inserting your tongue into her vagina as well as your finger. You then inserted your tongue into her vagina from behind and you again penetrated her vagina with your penis.
73The sexual acts came to a sudden conclusion when a printer in the library started up. You then reset the library alarm at 10.34 pm. You drove towards Stark 's home but before returning her home you parked the car and again had sexual intercourse with her on the front passenger seat. You ejaculated onto her stomach. You then drove her home.
74That evening Stark 's father saw Stark returning home on the balcony leading to her bedroom. She was wearing a school dress. It was 11 pm. When he and his wife went up to Stark 's bedroom, they found pillows under her blankets just before Stark entered her bedroom from the balcony. At the time Stark was being home schooled due to the COVID pandemic and was not therefore required to wear a uniform. Stark told her parents that she had been out for a walk.
75When her mother looked through Stark's phone she read some messages and enquired who they were from and found photos of her daughter in her underwear as well as photos of you in your underwear. The next morning Stark told her parents of your meetings with her and that you had engaged in sexual intercourse. The following day the police were notified and Stark underwent a full forensic examination. Stark described the previous night's encounter and that you had ejaculated on her stomach. Samples were obtained from DNA comparisons. Sperm samples from her stomach and underwear identified you as the single source.
76Stark later made two statements disclosing details of your offending. Your phone was seized and police executed warrants and subsequently analysed them. Located on the phone were 103,928 text messages sent between you and Stark in the period 19 September 2019 and
16 October 2020. The topics in these messages included Stark raising with you that what you were doing was wrong, illegal and it should end. Telling you to bring protection and you responding, 'No I can't. I need skin on skin.' Stark expressing concern that she was late with her period and maybe pregnant. You obtaining the morning after pill for Stark in November 2019 on a different occasion from that outlined above, concerning the obtaining of such medication.
77Also located on your phone dated 30 June 2019 were messages to you from the head of the junior school at the college, warning you that senior students were discussing you ‘saying inappropriate stuff to students’ and messaging students. A second message from the same person about messages you had sent not being, 'teacher-like' and rumours which they had generated and warning you to be careful. And a third specifically mentioned Larson and talk in the school that there had been frequent messaging between the two of you and talk which that had generated at the school.
78These messages first are indicative of your attitude and state of mind in relation to your dealings with Stark and Larson. It was focused primary on your gratification and imposing upon them your will and desires from a position of predominance of power. The second aspect is that reflected in both sets of messages from Stark and the school, which clearly should have given you cause to desist. You did not heed the warnings which should have given you pause to reflect and cease your conduct. You went on undeterred.
79The proposition cited earlier from Polat is in my view most applicable to your offending in relation to Charge 6. That is that your moral culpability increased by virtue of the fact that you had an opportunity to reflect on your conduct. To continue with your sexual abuse of a child, which you knew to be wrong, after such opportunity, is conduct calling for stronger denunciation and heavier punishment with each instance becoming more grave.
80You were interviewed by police in relation to the offending about Stark. You answered, 'No comment' to the allegations. You declined to be interviewed following Larson's statement.
81Relevant victim impact statements were received by the court. They were from the two complainants and one from Larson's parents, one from Stark 's father. Alyson Larson wrote of the impact the offending had on her personality, from a happy, bright and cheerful person, to one that is aloof, closed off and withdrawn. The experience has been detrimental on every aspect of her life.
82Since 2019, the beginning of your offending against her, she writes of being constantly tense and on edge with anxiety and some panic episodes. She describes you demanding constant attention at school and after school, with constant calls and texts including highly sexualised texts which were very uncomfortable.
83This attention seeking interrupted her enjoyment of life. During your offending you would often criticise her body which caused her to over exercise and starve herself. She felt like you were taking advantage of her weakened stated to prey on her. She developed symptoms of bulimia for which she never sought treatment. She began failing her subjects at school. By 2019 she was feeling suicidal and depressed. Her social life damaged, when she told you she did not want this state of affairs to continue, you would not allow it, you became more persistent and you were referencing what others would say upon discovery. She felt ashamed and silenced.
84For most of 2019 and 2020, she felt overwhelmed with anxiety and cried every night. Her academic performance at school and attendance at the school functions was damaged by the impact of the offending. It affected her VCE ATAR score and she fears that her future and her potential career will be diminished. She had hoped to start a part-time job in 2021 but was fearful of going out in public and her self-esteem plummeted. She stated attending counselling to deal with the aftermath of the sexual assaults.
85This victim impact statement echoes in its impacts described the statements which the court receives as part of many similar cases it deals with daily. It is well established the harm caused by sexual abuse of children and young people is severe and long-lasting. The objective gravity of your offending rests upon the presumption that harm will occur irrespective of whether it is immediate and manifest. This harm is articulated in this statement, as it is in her parents' statements.
86Dr Finley[4] and Dr Larson[5] are Alyson Larson's parents.
[4] A pseudonym.
[5] A pseudonym.
87Their statement reflects firstly on the toll upon them and the trauma on their daughter and of the context of trust reposed on teachers. That this offending occurred in the framework of an educational relationship involving a teacher has caused anger, anxiety, distress and despair. They write of Alyson harming herself in reaction to the trauma experienced and the constant vigilance on their part to ensure she had not harmed herself. They write of a happy outgoing child who now struggles with overwhelming fear in many normal life situations accompanied by low self-esteem.
88They speak with abhorrence at your efforts to silence their daughter, and via the spectre of public exposure and shame. Fear has caused them to be hypervigilant around their home. It has caused them insomnia, social anxiety and panic attacks and one of them had to stop working altogether to ensure their daughter was safe while the other decreased their working hours. They described their trauma as debilitating and conclude by writing, 'We are inconsolable'.
89Ana Stark wrote a brief statement in which she writes of the period involving this offending as difficult. 'This leaves a big scar', she said. She writes of trying her best to focus on other things but reflects on how difficult it is for someone her age to undergo this type of experience and to move on from it. She is unsure of how this will impact upon her, perhaps even physically. She is trying to overcome the negative thoughts by making new friends, a slow and difficult process.
90Her father writes of the tremendous impact upon him. He mentions what parents of abused children often report, that is the guilt and self-blame and not having been able to protect his daughter from this harm, both physical and emotional. He thought he had put in place a safe study environment and it is, he writes, 'Too much to accept the fact that it was not'. Your offending has impacted on his relationship with his wife and life generally. He relocated his place of residence due to fear, with consequential costs and he left his role at work, another unexpected strain on the family. He is fearful for his children's safety and wellbeing. I take each of these statements into account.
91There are a number of features to this offending which make it a serious example of each of the assault, penetration and persistent sexual abuse offences on the indictment, with the grooming offences considered separately as I have made clear, the level of breach of trust I assess as high. As a teacher at the victim's school and thereafter a teacher occupying a significant position of authority and trust in the community in respect of your students, your breach is egregious. The community is entitled, as are indeed other students and the student's families, to have confidence in the very significant trust placed upon the teachers of our children.
92Adolescent students are susceptible and impressionable in regard to adult figures or authorities such as teachers. Additionally, you knew that Stark had issues at home and spoke to you about them, and she 'felt lost’ at the relevant time and turned to you for welfare support. You exploited a significant difference in age between you and your victims. You well knew you were acting in breach of trust, violating teacher pupil proper professional conduct and that you were engaging in criminal conduct. You were aware of this, not only from discussions with your victims, but you chose to disregard the consequences, persisting contumaciously in your criminal conduct, engaging in a high degree of planning on the one hand to avoid detection and incongruously taking risks to pursue your own sexual gratification.
93This included refusing to use contraception, to the young victim Stark needing to purchase the morning after pill, to pressuring Stark to continue when she wanted to stop, pressing Larson to delete messages to avoid detection and exposure for her, to ignore the warnings of a senior teacher, months before you ceased offending upon your arrest.
94The purpose of the offence covered by Charge 3 and 4, is to protect adolescents and to punish persons in positions of authority who exploit this vulnerability. Your offending, which at one point involved contemporaneously two young victims was a gross and grossly inappropriate violation of your obligations, in order to satisfy your sexual desires. Yours was not an isolated act of stupidity, but a repetitive and sustained course over a protracted period of time.
95It is of first importance that offending of this kind be met with severe punishment. The community’s abhorrence at the sexual exploitation of children, must be expressed appropriately by denouncing your conduct, and designed to deter those who might be inclined to take advantage of children for their own gratification, to protect children from the harm presumed to be caused by premature sexual activity. That is, activity before the age that a child is deemed to be able to give meaningful consent to that sexual activity. See Clarkson v The Queen [2011] VSCA 157.
96It was said by the defence upon your plea that the grooming described did not display overtly coercive, overbearing or threatening features. This description is accurate as far as that offence goes. I have little doubt however, that the content of the messaging and face to face exchanges involved in the grooming were manipulative, increasingly sexualised and designed to ultimately make actual sexual activity possible.
97As can be seen from the factual descriptions contained in the summary, there can be little doubt that you adopted physical and psychological coercion in your offending, particularly of Larson. Words such as “pushed”, “pulled”, “moved”,” grabbed”, “turned”, often recur in the description of your dealing with the complainants, indicating the power imbalance both psychological and physical you deployed.
98Charges 2, 3 and 4 are Course of Conduct charges under schedule 1, clause 4A of the Criminal Procedure Act. Each of these charges involves more than one incident of the particular offence which is a sexual offence and therefore for purposes of the abovementioned clause a relevant offence and constituting the basis for a course of conduct charge for the purposes of clause 4A.
99During the course of the plea, I was taken to a number of authorities which concern this provision. They were, Clifton v The Queen [2021] VSCA 111; Poursanidis v The Queen [2016] 50 VR 681; Hester v The Queen [2023] VSCA 41; Crawford v The Queen [2018] VSCA113, DPP v Tullipan [2021] VSCA 191; Pickford v The Queen [2019] VSCA 195; McCrae v The Queen [2017] VSCA 340. I have read each of them. This was not a matter of dispute as between defence and prosecution, and the authorities make clear a number of distinct matters pertaining to the process of sentencing for a course of conduct charge, which I apply to this sentence.
100Section 5(2F) of the Sentencing Act1991, obliges me to impose a sentence that reflects the totality of the offending, it constitutes the course of conduct. Apart from the principal of totality of which I am particularly conscious and the other usual sentencing principles applicable, the only constraint on my discretion is that the sentence must not exceed the maximum penalty. In the case of Charges 2 and 4, that is 10 years and in the case of Charge 3 that is five years.
101The prescribed maximum penalty is a yardstick by which the gravity of the offending is to be assessed despite that offence itself being charged in terms of a course of conduct. See Poursanidis and Hester above. Here you are to be sentenced for multiple instances of each charge, albeit within the confines of a single maximum penalty and therefore sentences imposed for single instances of each charge do not provide any relevant guidance, see McCray and Crawford above.
102Most notable, is that otherwise orthodox sentencing principles apply. See Poursanidis above. What is a just and appropriate sentence of a course of conduct sexual offence will be informed by the nature of the acts, the frequency and persistence of the acts, the age and other personal circumstances of the victim, the impact of the offending on the victim. Essentially the matters that I have already recited above.
103Within the maximum penalty the sentence must reflect the totality of your conduct. This task has been noted before. See Tullipan above. And is of particular difficulty as it is different from the conventional sentencing exercise undertaken by a judge when sentencing for multiple offences. I was assisted by submissions as to these matters, and I recite them here in order to indicate that I am aware of the principles which underly this sentence and I have applied them.
104The totality of the offending the subject of Charge 2 covers four acts committed between the relevant dates, as I have described them. They arrange from brushing buttocks, touching buttocks with both hands, moving the hand up and down over the vagina over the underwear, the rubbing the hand up and down over the vagina over underwear. Although serious in themselves, particularly the last two instances, this sexual offending lies towards the lower end of a scale of gravity.
105Three of the acts were committed on the one occasion and the fourth on a separate subsequent occasion. I consider that the subsequent fourth act as to the total criminal conduct in relation to this charge is the most serious act out of the four, and in doing so I am conscious of the principle of totality which remains applicable.
106Another factor which I take into account is that Charge 2 is subject to provisions regarding Standard Sentences, set out at s 5A of the Sentencing Act. The standard sentence for Charge 2 is four years. This is a legislative guidepost having the same function as the prescribed maximum penalty. It is one factor relevant to sentencing and to be taken into account in the instinctive synthesis process, which I have undertaken. I was referred helpfully to a number of cases which I read, see Brown v The Queen [2019] 59 VR 462 and Lockyer v The Queen [2020] VSCA 321 as well as a number of others, DPP v Amaral [2020] VSCA 290; DPP v Beck [2021] VSCA 88; DPP v Frank [2021] VSCA 163; Wilio v R [2023] VSCA 88; McPherson v R [2021] VSCA 53; Clark v R [2022] VSCA 89, Victorsen v R [2020] VSCA 248;DPP v Koumas [2021] VSCA 215; DPP v Conos [2021] VSCA 367;DPP v Hum [2022] VSCA 57; Lugo v R [2020] VSCA 75, Jenkins v R [2021] VSCA 65; Nachar v R [2021] VSCA 242; DPP v Nuige [2022] VSCA 14;Sims v R [2022] VSCA 114 and Newton v R [ 2023] VSCA 22.

107The approach required is not in dispute, taking the standard sentence into account as well as factors relevant to sentencing does not affect the established instinctive synthesis approach to sentencing. It does not therefore permit a two-stage sentencing and does not affect the matters which the court may or must take into account. See Brown above.
108The scheme and provisions under s5A define standard sentence, section 5A(1)(b), as the sentence for an offence that, taking into account only the objective factors affecting the relevant seriousness of that offence, is 'in the middle of the range of seriousness'. The provisions specify that those objective factors are determined without reference to matters personal to a particular offender or class of offenders, but wholly by reference to the nature of the offending: s 5A (3).
109These specifications apply in identifying the hypothetical middle of the range offence. It is a necessary part of the process of instinctive synthesis to assess the seriousness of the subject offence, without constraints by the legislative definition of ‘objective factors’. These constraints are referrable only to the assessment which gives content to the hypothetical offence, of an offence ‘in the middle of the range of seriousness’. I have assessed the offence seriousness in the conventional way, taking into account both objective gravity and moral culpability. I have expressed above my view that objective gravity is towards the lower end of the scale. I assess your moral culpability as high given the circumstances surrounding the offence, which I have expressed.
110As was noted in Brown above at paragraph 57, the utility of the notion of the ‘middle of the range of seriousness’ in the case of a standard sentence is lessened due firstly to the narrowness of the definition of ‘objective factors’, which is ignorant of a range of matters I need to take into account in assessing the nature and gravity of the offending. And secondly, because of the inevitable imprecision of the notion of a hypothesised mid-range which is not a precise point, a matter which follows on the scope and variety of circumstances which can be relevant to considering seriousness. See Carlton v The Queen [2008] NSWCCA 244 at paragraph 90 and McClaren [2012] NSWCCA 284 at paragraph 28.
111The notional mid-range in circumstances such as covered in Charge 2 is in my view a very difficult exercise. This being so I do not accord this intangible concept much weight. It is certainly not my starting point, but is to be simply given a place in the sentencing calculus. See McPherson above at paragraph 31.
112I do not consider that the standard sentencing regime in any way diminishes the importance of giving proper weight to the relevant mitigating factors. Examples were provided where courts have imposed sentences for a standard sentence offence, falling well below the standard sentence for that offence, and I have read and considered them in relation to that submission. When objectively viewed the offending Charge 2 is below the mid-range of this type of serious offending.
113When measured against the vast range of pernicious conduct that can constitute sexual assault of a child under 16, it falls towards the lower end of that range. The sentence which I will impose endeavours to resolve a tension between the standard sentence, the maximum penalty, the need for denunciation, punishment and deterrence on the one hand, and your circumstances, mitigating factors such as your plea, prospects for rehabilitation, totality and parsimony on the other.
114Charges 2, 3 and 4 being course of conduct charges, the only decision of relevance in determining the current sentencing practices for course of conduct charges are those cases where the particular offence was charged as a course of conduct as I have already stated. It was submitted that no such cases at the time of the plea have been considered by the Court of Appeal for the offences under Charge 2,
3 and 4. However I was taken to DPP v Ellis, above, which was not s49C (1) offence but its statutory predecessor. I was also taken to the case of DPP v Waring [2021] VCC 1419. Apart from matters I have already mentioned both only provide general guidance and are relied on by the defence to highlight the sentences for the offences they were dealing with, which in the case of Ellis had some similarities, fewer in that of Waring.
115Another factor in the sentence, is the effect of part 2A of the
Sentencing Act, the Serious Offender provisions. In imposing a sentence of imprisonment on Charge 1 and 2 you will fall thereafter to be sentenced as a serious sexual offender on each of Charges 3, 4, 5 and 6 under s6B (2). In imposing sentence on those charges, it will be necessary to have regard to s6D, E and F of the Sentencing Act.
116Section 6A of the Sentencing Act, imposes an obligation to regard the protection of the community from you as the principal purpose for which the sentence is imposed. That is a sentence of a sufficient length to protect the community against the risk you pose. This length will depend upon the assessed risk of relevant reoffending, see
The Queen v LD [2009] VSCA 311.

117I will address this requirement in relation to Charges 3-6 in a moment, noting however that the protection of community in the sentencing for sexual offences is always a relevant consideration. I note that the provisions for s6DA have as their main purpose to ensure that I give proper consideration to the question of community protection and undertake the required risk assessment. See DPP v Patterson [2009] VSCA 222. Section 6DB confers a discretion to impose a disproportionate sentence, while s6E addresses the imposition of a cumulative sentence on a serious offender for a relevant offence unless otherwise directed by the court.
118The protection of the community is always a relevant consideration in sentencing but the sections are clearly directed to ensure that I give proper consideration to the question of community protection and undertake the required risk assessment. It is also clear that provisions in s6E which deals with the imposition of a sentence, to be served cumulatively in sentencing a serious offender do not abrogate the principle of totality despite this inherent tension between provision and principle, which calls for an evaluation of the overall criminality involved in all of your offending to which 6E applies.
119The authorities, I note, provide some guidance as to how the tension is to be resolved in a given case, see R H McL v The Queen [2000] 203 CLR 452 at [76] where it was said that the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion to direct otherwise than cumulation.
120The High Court said that sentencing judges need to be astute not to undermine the legislative policy by applying the totality principle as if the section was not on the statute books. In Gordon v The Queen [2013] VSCA 343 at paragraph 26, Justice of Appeal Redlich identified one relevant consideration. Namely, the objective gravity of the offending indicating that as it escalates so too will the degree of cumulation, reducing the degree of concurrency. In DPP v Hopson [2016] VSCA 303 at paragraph 52, the Court expressed the view that the risk of reoffending and the likely seriousness of any reoffending must also be a relevant consideration.
121I do not intend to impose a disproportionate sentence, although the risk assessment involved here is not a straightforward matter based on the material. I do not find that you would represent a danger to the community requiring protection, which can be achieved by a proportionate sentence, which I will impose. I note the prosecution did not seek such a sentence in any event.
122As to current sentencing practice in relation to Charges 1 and 5, the grooming offences, I was informed during the plea that there had been only three decision of the Court of Appeal which had considered the sentence imposed for this offence: DPP v Conos [2021] VSCA 367,
Bouris v R [2021] VSCA 243 as well as Campbell v The Queen [2019] VSCA 158. I have read them. Apart from general consideration of some principles, these cases provide little assistance as both defence and prosecution fairly agreed.
123Charge 6 which alleges persistent sexual abuse under s49J (1) of the Crimes Act, is a Standard sentence offence by reason of s5B (2B) of the Act. In regard to current sentencing practices for this offence the Court may have regard to sentences imposed for this offence as standard sentence offence. Both defence and prosecution submitted relevant cases: Henderson v The King [2024] VSCA 78; DPP v Engler [2023] VCC 1600, DPP v Neale VCC 1431, DPP v Foggatt [2023] VCC 121. I note that the latter three sentences were of this Court. Also, Murphy v The Queen [2022] VSCA 259, DPP v Murphy [2021] VCC 1525, DPP v Mendoza [2021] VCC 1712, DPP v Williams [2020] VCC 2065 and DPP v Robards [2020] VCC 1665. Again, I note that the last four of these are decisions of this Court and that Murphy is an appeal decision of the second case cited.
124I have read and considered each one. The defence sought to highlight in all of these cases the lower sentences imposed by comparison to the standard sentence on most of the sentences, except in Murphy where the offending was said to have been much more grave than here. And partly in Henderson for Charge 1, where the standard offences were fully applied. I note that in Henderson at paragraph 79, the Court of Appeal also examined four other cases decided prior to the introduction of the standard sentencing scheme in relation particularly to the circumstances of the offending in those matters.
125In relation to Charge 6 I have taken into account that it is the persistence of the sexual relationship over time which is at the heart of the offence. See DPP v DDJ [2009] 2 VR 444. Such persistence is likely to heighten impact on the victims and increases the damage they suffer. At the same time, I have little doubt that you became progressively more aware of the damage you were causing. The nature and intensity of the sexual abuse, your age relative to the age of the victim, the context in which the acts were committed and the period of time during which these acts were committed. In relation to Charge 6 they were of great significance.
126On some occasions, multiple sexual acts were committed. I have considered the extents to which each act added to the criminality of your conduct, the total criminality of the offences covered by the charge. The total effective sentence will be imposed in respect of six individual sentences, two of which are for standard sentence offences and I will fix a non-parole period in accordance with s11A (4) of the Sentencing Act.
127I consider Charge 6 to be well in the higher level of mid-range of offending seriousness, but it will still, appropriate to the relevant synthesis of all the relevant matters, fall somewhat below the standard sentence. This is so despite the fact that I have little doubt your moral culpability increased with your persistent offending because of your ample opportunity to reflect on what you were doing and desist. It was calculated, premeditated, planned and despicable. This charge carries a standard sentence for an offence of mid-range objective seriousness set at 10 years. And with a presumed minimum for the non-parole period of at least 60 per cent of the head sentence under s5A and 11A of the Sentencing Act.
128I take your plea into account. You were bailed on 18 November 2020. Committal mentions were adjourned for resolution discussions in February, March, May, June and September 2021. But in
August 2021, you had been remanded in custody. A plea was entered in October 2021, upon a straight hand up brief. The indictment was not finalised until January 2022. Arraignment was then adjourned three times because of an issue with dates in the particulars. You were arraigned in February 2022. Plea hearings in June and October 2022 were vacated.
129The summary of prosecution opening was filed on 18 January 2023. The plea hearing was listed for February 2023 and proceeded with the reading of the prosecution opening and the victim impact statements. The defence then sought an adjournment of the May 2023 and the defence submissions were dated December 23 and January 23. A report from Patrick Newton, Psychologist was dated 21 April 2023 and one from Geoffrey Burrows, was also filed. A second report from Mr Newton dated 22 January 2024, was filed with the second Burrows report also dated 22 January 2024.
130A reference from your mother dated 23 January was also tendered in 2024. This delay is without doubt exceptional. The last part of it, which concerns the last period leading up to the plea in May and then to today, is not referable to the parties and certainly not to you. I take this delay into account as a significant factor in mitigation and consequent reduction of your sentence.
131Delay particularly of this extent gives rise to consideration of fairness to you and the attendant uncertainty as to your future whilst on remand. It is clear that such an extended period of remand would have been accompanied by anxiety and frustration. This was made worse by the prevailing conditions of remand subject to COVID pandemic requirements. It is accepted by the prosecution that your indication of a plea of guilty was made early in the chronology. As to the reasons why from that point such an extended period was taken up, appears initially or in part to be related to the details of the indictment, particulars as to dates and the necessity of an agreed prosecution opening as well as the need to obtain adequate psychological reports, but the subsequent delay I accept has been due to Court processes and then my own particular situation.
132Nevertheless, your plea was made in the context of the pandemic. This, according to well-known principles under the decision of Worboys, requires pronounced amelioration of sentence. Firstly, the plea has increased utilitarian value. Your plea avoided a criminal trial and its costs and delays as well as the cross-examination of the two young complainants. It indicated an acceptance of responsibility and facilitated the course of justice.
133COVID-19 was first identified in January 2020 and a state of emergency announced in March 2020. Jury trials and criminal cases were suspended in May/June 2020, and the capacity to dispose of criminal matters were severely impacted leading to a substantial backlog. A further lockdown was declared in May 2021. You entered your plea in October 2021. The restrictions which the pandemic imposed on correctional service and those in its custody continued to be severe.
134There were restrictions on movement, family visits, opportunities for work and vocational programs. The continued danger of contagion and illness in the closed prison environment was ever present and the use of lockdowns and solitary confinement requires an appreciable and pulpable reduction in the sentence, which I will apply, even though at the time of the sentence these considerations have been reduced by the Court having largely overcome the pandemic effect upon its work.
135Within your remand, I was informed that you had three periods of
COVID-19 quarantine, each of 14 days, which meant 42 days alone in a cell for 24 hours. You had approximately 118 days in full lockdown and 78 days of half-day lockdowns due mainly to staff shortages in Deakin unit. Later in 2023, you had another 114 full days and four half day lockdowns. Your unit also apparently had reduced access to industries, library and educational opportunities. The restrictions were highlighted by your limited ability to access courses.
136You were able to complete one of them, three sessions in April 2023 of ‘Foundational Skills’. You completed 10 two-hour sessions over a
10-week period also in April 2023, in Maths and English, where you assisted other prisoners.
137To your credit your qualifications as a teacher have enabled you to assist other prisoners in administrative tasks, document preparation, and letter writing and the like. You are a billet, cleaning the visitor's centre. Your visits were similarly restricted. As a sex offender, apart from the pandemic regime, you've been in a protection regime. It is to your credit that despite these remand conditions you've engaged in rehabilitative programs. By the time of the plea you had attended a large number of sessions either by video conference or in Mr Burrows' office.
138I take all of these matters pertaining to your plea into account. I also accept that the plea itself is some evidence of remorse and that the plea is accompanied by some degree of expressed remorse. A second aspect of delay is related to your efforts at rehabilitation and I will come to those details in a moment.
139I take your personal circumstances into account. You are 40 years of age, your 75-year-old father was an account and your 71-year-old mother was an administrative office manager. You have two siblings, you attended a private secondary school and completed a
Bachelor of Applied Science, majoring in psychology, then a
post-graduate Diploma of Education. You also undertook youth work studies at a Christian college between 2007 and 2008. You were employed as a youth worker by the Box Hill Salvation Army. Between 2009 and 2011, you were employed as a tenancy housing worker for Eastcare. You were then employed as a teacher by the college in question between 2013 and 2020.
140Your childhood was not marked by any forms of mistreatment and was generally unremarkable. You did not experience any sexual abuse or violence. Your family was strongly religious. Apart from a relationship in Year 12 at school, your next relationship was with your now
estranged wife. You married in 2010. There is one child from that relationship, a daughter. Between your arrest until your remand in 2021 there was a period of supervised access several times a week to your daughter, but you have not seen her since that time
141The issue of prior good character took up a significant portion of the plea, however, ultimately the prosecution conceded that you were entitled to rely on your previous good character. I need not recite the lengthy argument that proceeded during the plea, but on the authority of the CoA in DPP v Ooms [2023] VSCA 207, I accept that s5AA of the Sentencing Act does not apply in this case.
142I am not affirmatively satisfied that your prior good character or lack of previous convictions was of assistance to you in the commission of the offences, for the reasons articulated at length during the plea and ultimately conceded by the prosecution. See also Fichtner v The Queen [2019] VSCA 297 at paragraph 86. The provision I have referred to was intended to alter the common law and to prohibit the court, subject to the condition expressed, from having regard to identified mitigating factors personal to the offender, by requiring a causal connection to be shown between the mitigating factor and the offending.
143This prohibition only applies if I'm affirmatively satisfied of the requisite connection which is said to have assisted the offender in committing the offences. That is, that it made some material contribution to the commission of the offence. I am not so satisfied in your case and do not find that the section is made applicable by the argument that your previous good character enabled you to gain employment as a teacher which provided an opportunity, and therefore was of assistance in your offending against the child under your care and supervision.

144
I accept that you were of otherwise good character. I take that fact into account. The weight that must be given to that good character will vary according to all the circumstances in the case. See
Ryan v The Queen
[2001] 206 CLR 267 at paragraphs 36 and 37. In that case
Justice McHugh explained the relevance of good character in sentencing, (paragraphs 27 and 34 as quoted in Ooms at paragraphs 33 and 36). During the course of your plea much was sought to be made of your ‘good deeds’ and behaviour, echoing His Honour's phrase in Ryan, as one positive aspect, which is accompanied by the aspect of the absence of prior convictions. Nevertheless, otherwise good character has to be weighed against factors which might diminish it's mitigatory weight in a particular case.
145Such factors include the occasions and duration of the offending and the breach of trust involved in it. This weighing exercise is relevant to my sentencing synthesis. You were involved in church and community work with the Salvation Army from age 18-26. These good deeds, as described in oral submissions, involved youth work with disadvantaged and displaced youth, community events and functions including dinner for homeless, removing graffiti, rubbish removal, community barbecues, sporting events, drop in centre services for street kids.
146
I accept these activities constitute a background of good behaviour. Those activities seemed to have ceased at about age 26. Despite that and probably motivated by career opportunities and requirements, clearly these younger years were marked by activities which are to your credit. Perhaps the end of this engagement coincided with what
Mr Newton in his report records as you having, 'distanced yourself from your faith as you entered adulthood', (at 12 of the report).
147Your description of your involvement to him was related to 2003 to 2006 as an after-school carer and as a youth worker for the Salvation Army in 2007, 2008, and 2009 to 2011 as a tenancy housing worker. These dates approximate the 26 years to which I referred. In any event your years as a teacher before your offending, that is 2013 to mid-2017 also formed part of what I accept is relevant to your otherwise good character to be taken into account.
148I accept and take into account that there have been instances of extra curial punishments upon you. You have lost the ability to help your parents in this latter stage of their life. You have brought shame and embarrassment upon them. There has been media reporting about your case impacting on family members and on your time on remand. You have lost your wife, any connection with your daughter. You have lost your chosen profession as a teacher and you will likely never coach sport again. You have lost your personal and professional reputation with your colleagues. It was noted during the plea that you could not produce a letter from either the school or from an earlier contact in past years, so that you could only rely on a letter from your mother as a personal reference.
149This experience of opprobrium as extra curial punishment may be viewed as just deserts, but is nevertheless a part of the retributive justice which I take into accounts in sentencing you. As I have said, much was made of the length and condition of your remand. Details were given during the plea of the condition of your remand. And I have outlined them above. The aspects of detention were: being held in maximum security, being held in protection for extended periods with limited access to yard, being confined to a small cell, frequent strip searches, restricted family visits, long periods of solitary confinement, your unsuccessful application to be a peer educator, and programs are being cancelled, inter alia.
150I note that recently the Court of Appeal in Dung Yat and The King [2024] VSCA 93 dealt with a matter which involved both delay, extensive remand of over a thousand days and burdensome conditions of imprisonment. Although the factual circumstances were significantly different, the court considered one mitigating factor as the placement of the appellant in a management unit for an extended period and proceeded to address some of the relevant authorities. It is well accepted that the conditions under which a sentence of imprisonment is served is to be taken into account when considering the severity and impact of the penalty imposed in the particular circumstances. See Bekinko v The Queen [1999] 107 A Crim R 415 and The Queen v Faure [2005] VSCA 91; 12 VR 115.

151I apply these principles to your remand. There are various circumstances where it is accepted that the fact that the prisoner's experience of custody is more burdensome when compared to the general experience of other prisoners. This will warrant mitigation of penalty. These include a number of conditions that have occurred here. The question of the need for protection is somewhat vexed and I am not determining this factor as if it arises out of your own misbehaviour, in fact it does not. It arises from the kind of offending involved on the indictment. Your status was not due to your conduct in custody and I consider that the status of protection is a relevant consideration. See R v Males [2007] VSCA 302 paragraph 39 to take into account.
152The consequences of the pandemic and the delays which I have described above in my view justifies weighty mitigatory significance to be attributed in the sentence to be imposed upon you. See R v Stevens [2009] VSCA 81 at paragraph 20-23. I also take into account to your credit that you have completed a number of available courses, listed at p6 at part 2 of the defence submissions. I received assessment reports from Mr Patrick Newton dated 21 April 2023. And an updated report dated 15 January 2024, as well as a report from Mr Geoffrey Burrows a provisional psychologist who provided treatment for you, dated
23 April 2024 and 22 January 2024.
153These reports are of significant assistance in a number of contexts, particularly the second limb of delay, that is the progress made towards rehabilitation and the issue of your prospects of rehabilitation and the issue of risk assessment which is important when sentencing you as a serious offender, and more generally matters going to background and personal circumstances including remorse. And matters going to the nature of your offending, inter alia.
154As is usually the case Mr Newton's report was detailed, balanced and very helpful. Mr Newton in his April 2023 report first outlines your participation in the sex offender treatment with Mr Burrows and writes that they have discussed your case and he has taken these discussions into account in preparing the report. You impressed as an emotional, distant, and guarded man. He took a personal history from you including educational, occupational, relationship and sexual development matters. In this latter context he noted your perennial frustration with your spousal sexual relationship lacking deference and respect you had come to expect.
155This led you to an online site called ‘Men’s Rights Forum’. This involvement appears from the report to have played a significant role in shaping your attitudes and views about relationships and sexual mores (see paragraph 24). This had a strong emphasis on women being manipulative and the importance of men needing to be sexually dominant in response. You acknowledged that this thinking had had a strong influence on you, influencing your relationship with women generally, but more specifically with the complainants. You pursued, in keeping with this pseudo psychology, a number of extra marital liaisons with adult women and your pursuit of a 'relationship with the complainants', (paragraph 24.)
156As to your mental health, you have never sought counselling before or been prescribed medication, although I note that Mr Newton refers to your self-medicating with anabolic steroids to increase testosterone during the offending period which is not a matter in mitigation. Mr Newton wrote of the background to your offending. You told him you were 'a very relational teacher’ striving to create a trusting connection with the students. You overstepped that mark by a very wide margin. You told Mr Newton that the complainants would come to you often and wanted attention and affirmation.
'At the time I would have said it was all very innocent. They wanted to be in a relationship of some form with me and I just facilitated to a degree. I thought there was nothing malicious or wrong about it, but obviously looking back now I see it differently.'
157This quote would be abhorrent and shocking but appears to conclude on a remedial comment. You said you would turn to the victims for your 'intimacy needs, both emotional and physical'. The progression in this, you acknowledged, was due to your initiative but you had seen them as 'willing to go along, invested in it and you could exploit that.' This thinking had been, you asserted, influence by your online participation which fed your deviant rationalisation, particularly of young females responding to authority, which appealed to you. You asserted belief that you were doing no harm or manipulating them. You didn't make the connection to your own predatory behaviour. These thoughts are often referred to as offence supporting cognitions, which are distorted attitudes, which serve to justify and motivate sexual offending.
158I have detailed them by reference to Mr Newton's report because they require considerable therapeutic work, and the unequivocal need for participation in specialist sex offender treatment. Before a risk assessment Mr Newton conducted a mental state examination. Your level of anxiety was found to be proportionate to your situation and you were not experiencing prominent depressive symptoms. You do not suffer from cognitive impairment or intellectual disability or forms of thought disorder.

159 At the time of the first report you had a clear understanding of the wrongfulness of your conduct. But Mr Newton specifically referred to a superficial and glib understanding of the impacts on the victims of your conduct. Your written expressions of remorse were replete with jargon and grandiloquent. It was not clear, opined Mr Newton, that you had genuinely recognised the damage caused by your conduct and repeatedly he was left with the impression your empathy was superficial with your preeminent concern being yourself and consequences upon you. He noted,
'Such views are consistent not only with a pernicious influence of the online forum in which he immersed himself but with broader trends in his personality which militate against the development both of empathy for others and for remorse for his conduct.'
160Your personality pathology, writes Mr Newton, views the world in competitive terms, conflict betw
een the sexes, a distorted view of masculinity and sexual entitlement reflected in a self-focused and
self-aggrandising approach, which were made worst by impulsive poor decision making based on gratification, rather than an appreciation of the consequences. These describe, says Mr Newton, prominent traits of narcissistic personality. A personality pathology that goes beyond normal levels of maladaptive traits.
161
Despite your training in psychology and knowledge, you attributed sexual maturity and capacity to consent to your victims, notwithstanding they were underage. Importantly as of April 2023, this presentation suggested to Mr Newton, that despite treatment by Mr Burrows, your awareness of the harm you caused remained in need of further development. You had difficulty for example applying implications of trust relationships and position of authority to the two victims and your relationship with them. He wrote that further therapeutic attention to these issues was required. He suggested engagement with extended group-based programs such as Better Lives offered by SOATS, Specialised Offender and Assessment Treatment offered by
Corrections of Victoria.
162
You do not meet the criteria for paraphilic or paedophilia disorder. Before moving onto Mr Newton's risk assessment, it is useful to refer to
Mr Burrows first report also of April 2023. At that time, you had participated in the sex offender treatment program at your own expense on 36 occasions. You presented as a confident, carefully spoken man with little insight into the culpability of your actions. You described the use of DHEA, the supplement mentioned above, and the views taken up by you on gender norms and your decision to offend because you believed your behaviour was harmless and mutually beneficial.
163
It is difficult to accept these rationalisations were genuinely held, but
Mr Burrows proceeded to a treatment program simply noting them as was appropriate by his treating role. He outlined the treatment approach in his report. You expressed regret but found it difficult at that time to understand the destructive impact of sexually abusing teenage girls.
164After an episode of psycho education you made progress restructuring offence supporting cognitions, but these and management of sexual urges required further intervention. He described at paragraph 17 your progress as to victim empathy was minor, requiring lengthy engagement to address an issue engrained in your personality, to reduce your risk of reoffending.
165At the end of his first report Mr Newton made a risk assessment for sexual reoffending. Using Static-99R, a well-known instrument for prediction of sexual reoffending risk, you placed in the low moderate risk range. This is an average risk for sex offenders undergoing sentence. The risk for sexual violence protocol RSVP produced only a partial assessment but I noted that table at paragraph 57-58 which included (1),’ issues remain with insight’; and (2), ‘limited progress despite long-term treatment’. These matters are of concern at least as at the date of the first report. Mr Newton writes of the slow progress to date but acknowledges that insight into the matters mentioned above typically develop only in the context of extended treatment.
166He notes your perseverance under difficult conditions and together with asserted motivation to further engage he writes that these provide a foundation for some optimism regarding your long-term prognosis. That is over time treatment would likely result in a steady reduction of the risk of recidivism. He concludes that the Static results are likely to have underestimated your level of risk and this should be read as moderate as somewhat above average compared to a typical sex offender undergoing sentence. Further sex offender treatment in a group-based context was indicated. So far your treatment has not been of this kind and you expressed openness to it however and desire to Mr Newton to engage with the required treatment.
167Mr Newton's update of January 2024 discussed your progress in treatment following discussions with you and Mr Burrows. You had by then attended 42 treatment consultations, six since Mr Newton's first report. Mr Newton found you had made slow but positive progress. This progress is outlined at paragraph 15 and included improved perspectives on the sexual development of young women, their ability to participate in a sexual relationship, process of rationalising your conduct, the vulnerability of victims to your exploitation.
168These matters led to an improvement in your level of remorse and empathy and insight. He opined the treatment was having a genuine therapeutic effect. Although the risk profile remained unchanged he wrote that the level of risk is trending downwards more rapidly than that anticipated and your prognosis would be considered positive. Assuming continued engagement with treatment and a positive connection to mainstream society, your progress is positive, if incomplete.
169
Mr Burrows brief follow up report on 22 January 2024 notes
participation in 46 sessions and is similar in content to Mr Newton, noting additional progress. You demonstrated more meaningful remorse, nevertheless he noted ultimately your progress was slow and further intervention is required. I accept you have made progress in your path to rehabilitation.
170This is a process which deals with undoing cognitions which have become reinforced over time and grounded in character, and therefore will take time to achieve. Your prospects of rehabilitation in my view are good, as long as the effort in treatment, particularly group based continues.
171Although risk assessment of future conduct is always a fraught exercise, I base my conclusion on the opinion expressed in these two reports. Yours is a moderate risk. Should you continue with treatment that risk will hopefully diminish along the downward path of which Mr Newton writes. Given these matters I consider that you are not a risk of the kind which requires protection of the community. Either as I have indicated by a disproportionate sentence or one which requires inappropriate cumulation to achieve in order to effect its purpose of protection. In other words a proportionate sentence will achieve this sentencing principle.
172I accept that your remorse is a developing factor as it often is. Not fully formed, yet in progress. Despite your lack of a criminal history which I take into account and your developing insight into your offending, in my view given the matters discussed and the expert opinion, specific deterrence is still a relevant matter to be taken into account.
173Lastly, I take into account the impressive letter provided to the court by your mother. She writes of a sense of shame and being heartbroken by your offending and her puzzlement at your conduct. She described your early years both at school and your involvement with youth ministry with the Salvos which demonstrated a pro-social and caring attitude. She writes of the restrictions during your remand which have now lifted allowing for regular visits and communication. She writes of your disappointment and regret for the effect on your family and for the disgrace which has fallen on you. Despite the reprehensible and inexcusable offending she writes of her love and support and that of the family, which will be an important factor in your rehabilitation and future.
174In this case I must under s5B (4) and (5) of the Sentencing Act in imposing sentence for a standard sentence offence, give reasons for the fixing of a non-parole period. I have confronted the tension between standard sentence, maximum penalty, the need for denunciation, the need for punishment, primary need for general deterrence. There's also the still relevant object of specific deterrence, the subjective personal circumstances including previous good character, delay and conditions of reclusion. As well as the provisions as to serious offender and your plea. As well as parsimony and totality principles. I have concluded that a sentence reflecting appropriately the total criminality involved in Charge No.6 will fall below the applicable standard sentence, in order to properly reflect the matters I have just listed and in order to effect a totality which is not disproportionate, despite the fact that the offence sits well in the mid-range of offending.
175The sentence for Charge 2, the other charge in which the standard sentence applies and which is one of the factors to consider in the synthesis, also falls below the yardstick and is not fully within the mid-range of offending.in reflecting these evaluations, I have fixed a non-paroled period which properly in my view reflects the period after which you should be eligible to apply for parole and is contemplated by the relevant provision.

176On the charge of grooming for sexual conduct on a child under the age of 16, Charge 1, you are convicted and sentenced to one year and three months' imprisonment.
177On Charge 2, of sexual assault of a child under 16, you are convicted and sentenced to two years' imprisonment.
178On Charge 3, of sexual assault of a child under 16 or 17, under care, supervision or authority, you are convicted and sentenced to two years', nine months' imprisonment.
179
On Charge 4, of sexual penetration of a child aged 16 or 17 under care, supervision or authority, you are convicted and sentenced to
four years and six months' imprisonment.
180On Charge 5, of grooming for sexual conduct with a child under the age of 16, you are convicted and sentenced to 12 months' imprisonment.
181On Charge 6, of persistent abuse of a child under 16, you are convicted and sentenced to seven years' imprisonment, the base sentence.
182
I order that 18 months on Charge 4, six months on Charge 3,
six months on Charge 2, and three months on Charge 1, be cumulative on Charge 6. I order that the sentence on Charge 5, be wholly concurrent. That is a total effective sentence of nine years and nine months. I order a non-parole period of six years.
183I declare that you have served 1,148 days excluding today by way of pre-sentence detention. I will have that number noted in the records of the court. Under the serious offender provisions, I declare that from Charge 3 onwards I have sentenced you as a serious sexual offender and will have that fact entered into the records of the court.
184Under the sex offender registration provisions you are required to comply with reporting obligations as a registered sex offender for the rest of your life. I will have a notice sent to you there where you are in relation to your obligations. They are quite significant and I would urge to read them when you have the opportunity.
185
But for your plea I would have sentenced you to 11 years with a
non-parole period of seven years and two months. My apologies for the length of the sentence, but there are a number of matters that I needed to properly cover. Thank you for your assistance. I will endeavour to have this sentence transcribed and revised as soon as possible.
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[2024] VCC 1402

2 September 2024