Director of Public Prosecutions v Goldsmith
[2023] VCC 2117
•16 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00739
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHELLE GOLDSMITH |
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JUDGE: | HER HONOUR JUDGE HASSAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2023 | |
DATE OF SENTENCE: | 16 November 2023 | |
CASE MAY BE CITED AS: | DPP v Goldsmith | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2117 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — sexual penetration of a child under 16 (4 charges) — plea of guilty — victim and offender met as members of a cricket club. Offending between December 2010 and April 2012.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Hall (a pseudonym) v The King [2023] VSCA 221
Sentence: Total effective sentence of 6 years imprisonment with a non-parole period of 4 years.
Section 6AAA declaration: But for the pleas of guilty to these charges a sentence of 8 years imprisonment with a non-parole of 6 years would have been imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B Goding | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms A. Frossynos | Aughtersons Lawyers Pty Ltd |
HER HONOUR:
1Michelle Goldsmith, you have pleaded guilty to four charges of sexual penetration of a child under 16 (Charges 1-4) for which the maximum penalty is a term of imprisonment of 10 years. Each of the charges is a rolled-up charge capturing a number of incidents. The particulars of each charge are as follows;
Charge One: penetration of a child under 16, the offender penetrated the victim’s vagina with her tongue, 2 occasions;
Charge Two: sexual penetration of a child under 16, the offender penetrated the victim’s vagina with her finger(s), 13 occasions;
ChargeThree: sexual penetration of a child under 16, the offender penetrated the victim’s vagina with a dildo or vibrator, 3 occasions; and
Charge Four: sexual penetration of a child under 16, the victim penetrated the offender’s vagina with her finger(s), 3 occasions.
2Tendered on the plea as Exhibit 1 was a ‘Summary of Prosecution Opening’.
3
You and the victim, Trisha Roland[1], met through the Box Hill Cricket Club Women’s Senior side. You and your then-girlfriend were captains of the team when Ms Roland played her first game for the side in 2010. She was
14 years old at the time.
[1] A pseudonym.
4
Ms Roland played on the Women’s Senior side throughout the 2010-2011 summer cricket season with you. You began messaging each other on social media and you began offering emotional support to Ms Roland for issues she was having with her sexuality and dealing with her parents’ separation. You offered to help Ms Roland figure things out and you developed a friendship.
Ms Roland began spending time at your home. Ms Roland’s mother was aware of the relationship but saw it as a positive thing for her daughter, and saw you as a role model for her.
5As the relationship developed you introduced Ms Roland to a television show called ‘The L Word’, an MA rated show which followed the lives of a group of lesbians. There were many depictions of sex in the show, and this was the first time Ms Roland had seen depictions of penetrative sex.
6You increasingly spoke with Ms Roland about sexual matters and told her you wanted to 'fuck' her. On one occasion when watching a scene in ‘The L Word’ where a couple were using a strap-on dildo during sex, you commented to Ms Roland, 'we should give that a go'.
7The sexual relationship between you and Ms Roland began at the end of 2010 when you were 30 and she was 14.
8You took the lead initiating sex and 'teaching' her about lesbian sex. Ms Roland described feeling conflicted about sexual intercourse with you, feeling at times curious, but also submissive and apprehensive. She felt as though she had to go along with what you wanted and was worried that if she put an end to what you were doing you would ridicule her, and it would end your friendship.
9You would joke with her that you 'didn’t want to go to gaol' because of your relationship. Ms Roland was ashamed of her relationship with you because you were both in other relationships. She stated that she did not perceive your relationship at the time to be legally wrong, because she trusted that you would not have had sex with her if it was illegal.
10I turn now to the particulars of your offending.
Incident 1 – December 2010 – ‘The L Word’ pool scene
Charge 1, first occasion and Charge 2, first occasion
11Shortly before Christmas in December 2010, Ms Roland was at your unit; you were laying on the couch watching The L Word together. A scene came on where two female characters engaged in sexual activity in and by a pool, culminating in one character performing oral sex on the other. You kissed Ms Roland, pushing your tongue into her mouth and biting Ms Roland’s bottom lip. You then reached her hand down Roland’s shirt and squeezed her breast. You stood up and Ms Roland moved positions on the couch before you moved her (Ms Roland’s) pants and touched her on the vagina over her underwear. (uncharged acts).
12You removed Ms Roland’s underwear and kissed up and down her body including on her breasts, stomach, neck and pubic bone. You then licked and bit Ms Roland’s clitoris and pushed your tongue into her vagina.9 (Charge 1 - sexual penetration of a child under 16, lingual/vaginal penetration, first occasion)
13You then used your thumb to rub Ms Roland’s clitoris before penetrating her vagina with two fingers. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, first occasion)
14You lay on the couch and rubbed your own vagina with your hand; Ms Roland stood up and put her clothes back on whilst this was happening. You put your hand down her pants again and rubbed her vagina. You then stopped and told her to 'finish it off later,' which Ms Roland understood to mean she should masturbate herself to orgasm later. Ms Roland left shortly after.
Uncharged Acts – early-2011
15In January 2011, Ms Roland house-sat your house for a weekend when you and your girlfriend, Ms Unger[2], went on a short holiday. When she handed over the key, you told her you would pay her back 'with sex and gnocchi'. A few days after you returned from the holiday, you and Ms Roland had sexual intercourse which you told her was her thank you for bringing in the mail and looking after the cats.
[2] A pseudonym.
16For Term 2 of 2011, Ms Roland was selected as one of six students from her school to attend a leadership camp in Western Victoria. A few days before leaving for camp, Ms Roland and you had sexual intercourse. You told her it was 'I’m proud of you sex'.
17Whilst Ms Roland was at the leadership camp, you sent her five handwritten letters and a birthday card. The letters became increasingly sexual in nature, with discussion of masturbation, bondage, anal sex and oral sex during menstruation.
Incident 2 – July 2011 – Ice cubes used in the spare bedroom of the offender’s unit
Charge 2, second occasion
18During the school holidays in July 2011, Ms Roland was at your house; she had recently turned 15 and you commented that you were now double her age. Your girlfriend at the time, Ms Unger, was not home.
19You and Ms Roland went upstairs into the spare bedroom and got into bed together. You ran your hand under her t-shirt and squeezed her breasts; you kissed her, pushing your tongue into her mouth. You had Ms Roland play with your nipple ring, encouraging her to be rough. You then left the room, returning with a glass filled with ice cubes. You requested Ms Roland rub the ice cubes on your nipples, which she did. (uncharged acts)
20You then put her hand down her pants and rubbed her clitoris before pushing two fingers in and out of her vagina. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, second occasion) The offending was interrupted by Ms Roland receiving a telephone call from her mother. She left shortly afterwards.
Incident 3 – between June-August 2011 – in the offender’s Mitsubishi Lancer
Charge 2, third occasion and Charge 4, first occasion
21After Ms Roland returned from the leadership camp, you picked her up from her home and drove her to an unknown location. Once parked, you told her to get into the back seat, slid the front seats forward and also got into the back of the car. You straddled her and began kissing her; you put your hands under her shirt and squeezed both of her breasts.16 (uncharged acts)
22You then put one hand down her pants, touching her vagina through her underwear. You took her hand and put it over your own underwear, making her feel your vagina. You then guided her hand by holding her wrist as Ms Roland penetrated your vagina with two fingers. (Charge 4 – sexual penetration of a child under 16, digital penetration of the offender’s vagina by the victim, first occasion)
23You then used your other hand to penetrate Ms Roland’s vagina with two fingers. You removed her pants and continued to digitally penetrate her vagina. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, third occasion) As you were doing so, you told Ms Roland, 'You know I like giving and not receiving'.
Incident 4 – between 23-31 August 2011 – in the offender’s new Mazda CX7 at Ainsley Park
Charge 3, first occasion
24You purchased a new Mazda CX7 on 23 August 2011; you told Ms Roland you wanted to 'christen' the new car, by which she understood you meant you wanted the two of you to be the first people to have sex in it.
25Approximately one week after the car was purchased, Ms Roland went to your house, and you drove in the new car to a Club X, sex shop in Ringwood. You told her to wait in the car, which she did. You went into the shop, returning a short time later with a bag, and drove the two of them you to a car park at Ainsley Park, Croydon.
26Once you were parked, you began unwrapping and handing to Ms Roland the items you had purchased, namely a sex toy cleaner, a small black whip and a 'First Timers Strap-on Set' which included a blindfold, a silicon penis-shaped dildo and a harness that the dildo attached to. As you unwrapped it, you told Ms Roland that she would show her how to use it.
27You moved the car seats forward and you and Ms Roland got into the backseat of the car. You told her to remove her pants and underwear, which she did and you removed your own clothes. You kissed her on the lips and said, 'You need to be wet for this'. You rubbed her clitoris and vagina with your fingers, and then put on the harness (uncharged acts). You used the dildo to rub Ms Roland’s clitoris before penetrating her vagina with the dildo, pushing it in to about half its length. (Charge 3 – sexual penetration of a child under 16, object/vaginal penetration, first occasion) You then rubbed her clitoris whilst pushing the dildo in and out of Ms Roland’s vagina, and continued kissing and touching her.
28The victim described the penetration as hurting and feeling uncomfortable; she believed she should push through the pain and was afraid to ask you to slow down.
29The sexual conduct in the car lasted 15-20 minutes. You told Ms Roland to take the dildo and harness as your girlfriend, Ms Unger, could not find out about you. Ms Roland took the purchased items with her, hiding them once she got home.
Incident 5 – between August-September 2011 – at the Yarra River
Charge 2, fourth occasion; Charge 4, second occasion
30Between 23 August and the end of September 2011, you took Ms Roland to watch her girlfriend play football at Bulleen Oval. Shortly after the start of the third quarter, you drove Ms Roland to a car park overlooking the Yarra River and Studley Park Boathouse.
31You reached over, kissing her and touching her over her clothing, including on her vagina (uncharged acts). You put your hand down her jeans, and because they were quite tight, Ms Roland unzipped her jeans. You rubbed your finger along her vagina before penetrating it with your finger. You repeated this a number of times. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, fourth occasion)
32Ms Roland reached across, put her hand down your underwear and rubbed your clitoris with her middle finger. (Charge 4, sexual penetration of a child under 16, digital penetration of the offender’s vagina by the victim, second occasion)
Incident 6 – in Term 4 of 2011 – at Army Cadets
Charge 1, second occasion; Charge 2, fifth occasion
33Ms Roland had joined the Army Cadets when she was in Year 8. She would attend weekly training at the Cadet Unit in Ringwood East.
34One Thursday night in Term 4 of 2011, Ms Roland’s mother dropped her off at the Cadet Unit for training. You were waiting in the car park, as had been pre-arranged with Ms Roland. She got into your car and you drove to a nearby reserve, where you parked. You got into the backseat of the car, and you began to rub your own vagina whilst kissing her. (uncharged acts)
35You tried to undo Ms Roland’s Army belt, but was unable to do so; she then undid it herself. You put your hand down her pants and underwear, touching her vagina and rubbing her clitoris before penetrating her vagina with two fingers, moving them in and out Ms Roland removed all of her uniform and you continued to digitally penetrate her vagina. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, fifth occasion)
36Ms Roland repositioned herself in the car, and you sucked and licked her clitoris, and used your tongue to penetrate her vagina. (Charge 1 – sexual penetration of a child under 16, lingual/vaginal penetration, second occasion)
37Rather than Ms Roland returning to Cadets, you drove her home.
Incident 7 – between October-Christmas 2011 – in the master bedroom of the offender’s unit using the ‘Jack Rabbit’ dildo
Charge 2, sixth occasion; Charge 3, second occasion
38Towards the end of 2011, Ms Roland and you were at your house. You hugged and kissed her and led her upstairs to the master bedroom. She lay on the bed and you kissed her all over her body, over clothing. (uncharged acts)
39You opened the drawer of a bedside table and pulled out a package containing a large, pink and white vibrator. It was approximately 8 inches long with ‘rabbit ears’. Ms Roland asked what it was, and you replied that it was a jack rabbit, demonstrating the different vibration speeds to her.
40You lay with Ms Roland on the bed and placed the vibrator on her pubic bone, near her clitoris. As you did this, you penetrated her vagina with your finger. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, sixth occasion) You told Ms Roland, 'I’m going to put Jack inside you,' and told her to relax. You lubricated the vibrator and pushed it inside her vagina, turning on the vibration as you pushed it further in, causing the ‘rabbit ears’ to be against her clitoris. You then moved the vibrator in and out of her vagina, gradually increasing the level of vibration. (Charge 3 – sexual penetration of a child under 16, object/vaginal penetration, second occasion)
41You kissed Ms Roland before using the vibrator on yourself in her presence. That evening you watched television and kissed on the couch before Ms Roland was picked up by her mother.
Incident 8 – October 2011 – at Flagstaff Gardens
Charge 2, seventh occasion
42After school on a day in October 2011, Ms Roland caught the train from Mitcham Station to Flagstaff Station, meeting you at your work on Elizabeth Street. When you finished work, you walked back towards Flagstaff Station. Before entering the station, you said to Ms Roland, 'I can’t wait until I get home, do you think anyone would mind if we had sex here?' You then sat on the grass in Flagstaff Gardens, and you covered both of you with your hoodie and kissed.
43You put your hand down Ms Roland’s pants and underwear, rubbing her vagina and clitoris. You used two fingers to penetrate her vagina, moving your fingers in and out for approximately five minutes. (Charge 2, sexual penetration of a child under 16, digital/vaginal penetration, seventh occasion) The victim rubbed your vagina over your underwear, until you moved her hand inside your clothing when she kept touching your vagina, this time under clothing and underwear. (uncharged act)
44Ms Roland stopped your touching because she was worried people were watching. You then caught the train back to Mitcham and walked from Mitcham Station to Ms Roland’s house. As you walked home, you kissed her on the lips. (uncharged act)
Incident 9 – 24 October 2011 – when the offender signed the victim out of school
Charge 2, eighth occasion
45On Monday, 24 October 2011, you took the day of work and attended the Ms Roland’s school where you signed her out of school early. You did so using a pre-typed and signed letter which Ms Roland provided to her teachers that morning, and then formally signed her out at the reception area of the school. Ms Roland felt it was 'pretty risky and cool' that she got to leave school. The two of you drove to your house, and Ms Roland turned off ‘Find my Friends’ on her phone so her mum could not see where she was.
46Once at the house you spoke for a while, before you initiated sex with her. She recalls feeling there was an expectation that you would have sex since you had signed her out of school. You penetrated Ms Roland’s vagina with three fingers, moving them in and out. The sex ended when Ms Roland had to leave to meet her sister at school to walk home. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, eighth occasion)
Incident 10 – December 2011 – at Rye Street, Mitcham
Charge 2, ninth occasion
47On a weekend in December 2011, Ms Roland had spent the afternoon with you. At around 3.00 pm you drove her home. An Eminem CD was playing in the car. One of the songs had the lyrics, 'Now look, you little cunt, slut, whore,' which shocked Ms Roland. She asked you whether she had, in fact heard the words correctly, and you laughed, replying, 'Yes, you’re my little slut cunt whore'.
48A little further down the road you pulled over, leaving the car running. You leant over and kissed Ms Roland and put your right hand down her pants and underwear (uncharged act). You ran your finger over her vagina before pushing your finger into her vagina, moving it in and out. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, ninth occasion)
49You took your hand out of Ms Roland’s underwear and rubbed her on the vagina over clothing again before stopping and telling her to 'finish it off' later. She understood this to mean she should masturbate herself to orgasm later. (uncharged acts)
50You then continued driving Ms Roland home, stopping a house away from her home so her mother would not see who had dropped her off.
Incident 11 – during the summer holidays 2011/2012 – at the victim’s school Cricket Nets
Charge 2, tenth occasion
51During the summer holidays of 2011/2012, you picked Ms Roland up from her home and drove her to the cricket nets at her school to practice cricket. You each brought your cricket gear and took turns at batting and bowling.
52When you were batting, you hit a ball out of the nets, which Ms Roland went to retrieve. You followed her, and a play fight ensued, resulting in both of you ending up on the ground. Whilst on the ground you undid the drawstring of her shorts, putting your hand inside her shorts and underwear. You penetrated her vagina with your fingers, moving them in and out. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, tenth occasion). You kissed a little bit whilst this occurred.
53Ms Roland did not really want to have sex at her school, and was concerned because she knew people used the grounds outside of school time. She was worried about getting caught, and asked you whether you should move to the car. You responded, 'We won’t be long'. After about 10 minutes, you stopped and you did a few cricket catching drills before you drove her home.
Incident 12 – between February-April 2012 – in the victim’s bedroom when she was doing homework
Charge 2, eleventh occasion
54At the beginning of the 2012 school year Ms Roland started Year 10. She had applied for a scholarship the previous year and was accepted, wanting to improve academically and start afresh socially. Her first day of school at her new school was 1 February 2012. It was on this day that she broke up with her then girlfriend.
55During Term 1, you came over her house. Ms Roland thought you being at her house was a safe way to socialise, as she believed you would not have sex in her parents’ house and with her family in the house.
56Whilst Ms Roland’s mum and sister were downstairs, you were in her bedroom. You were sitting at her desk, and she had shown you some work she had done at school. It was then time for you to leave. You and Ms Roland stood up and hugged goodbye. The victim described it as a “really long hug,” and that you were squeezing her quite tight. She says it felt nice to be held.
57You put your hand down her pants and underwear, using multiple fingers to rub up and down her vagina and over her clitoris. You put three fingers into her vagina and moved them in and out. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, eleventh occasion) Ms Roland felt disappointed that you could not spend time together without having sex, but did not say anything as she did not want to let you down, and because of the age gap.
58Your offending stopped when they heard Ms Roland’s mum coming up the stairs. You left shortly afterwards.
Incident 13 – between February-April 2012 – in the victim’s bedroom on her bed
Charge 3, third occasion
59On another occasion in Term 1 of 2012, you were at Ms Roland’s house, this time sitting on her bed. You asked her out of the blue, “Where did you hide it?” Ms Roland was unsure what you was talking about, and you told her to get it out. The victim realised that you were talking about the strap on dildo you had bought in August 2011. She went to the wardrobe and got it out of the drawer where she had hidden it. You threw the harness aside and took the dildo.
60Ms Roland lay on the bed, without her pants and underwear. You pushed the dildo all the way into her vagina, holding it by the base. You moved it in and out very slowly around ten times. (Charge 3 – sexual penetration of a child under 16, object/vaginal penetration, third occasion)
Incident 14 – between February-April 2012 – at the park near the victim’s school
Charge 2, twelfth and thirteenth occasions; Charge 4, third occasion
61During Term 1 of 2012, Ms Roland caught the train to meet you at your work in the CBD. You then caught the train from Flagstaff together. On the train you discussed going to a nearby park to have sex before each going home. You walked from the station to the park.
62Once at the park you lay down, and you began kissing Ms Roland. Ms Roland was nervous because she knew her sister’s friends and their parents were often at that park after school. However, the park was quiet. She ended the kiss, and kept checking the playground and who was around.
63You commented to Ms Roland that she had done up the drawstrings on her (the victim’s) pants again, and you put your hand down her pants resting it on her vagina over her underwear (uncharged act). You pressed your fingertip into her vagina, over her underwear. (Charged 2 – sexual penetration of a child under 16, digital/vaginal penetration, twelfth occasion) You then began rubbing her clitoris over her underwear.
64You put your hand under her underwear, touching and rubbing her vagina and clitoris. You then penetrated her vagina with one finger, moving it in and out for a short time before adding a second finger and moving it in and out at varying speeds. (Charge 2 – sexual penetration of a child under 16, digital/vaginal penetration, thirteenth occasion) Ms Roland felt uncomfortable having sex in public, and recalls that she would have preferred to just lay there and talk with you instead. You stopped what you were doing and told Ms Roland to do up her pants.
65Ms Roland put her hand over your underwear, touching your vagina. She then put her hand under your underwear touching your vagina and rubbing your clitoris with her finger from side to side. (Charge 4 – sexual penetration of a child under 16, digital penetration of the offender’s vagina by the victim, third occasion) You touched her breasts over her clothing whilst this was happening.
66You left the park and walked to your respective homes. This was the last occasion you and Ms Roland had sex.
67The relationship ended in March 2012 when your then girlfriend expressed she was not comfortable with the ‘friendship’ between you and Ms Roland and that she did not want you seeing Ms Roland anymore. The last contact Ms Roland had with you was on 1 June 2012 when you called her to wish her a happy 16th birthday and to tell her that you loved her.
68Ms Roland made a statement to police on 10 July 2019 and on 4 February 2020.
69You were arrested and interviewed on 5 March 2021. In your record of interview you denied any sexual contact other than a spontaneous kiss and Ms Roland touching you at the park. You told police Ms Roland’s account of a sexual relationship with you was untrue.
70You were charged on 31 January 2022.
71There was no committal hearing, and the matter was put directly into the trial list in this Court. At an initial directions hearing on 6 June 2022 the Court was informed there were no prospects of resolution. The first indication that the matter was capable of resolution was in January 2023. The matter was resolved in March 2023 and the trial date was vacated. You were arraigned on 24 May 2023.
Victim Impact Statement
72Ms Roland has made a victim impact statement. She describes at length the effects of your abuse upon her. She says, 'Putting my trust in you at a particularly challenging and vulnerable time in my life, only to have it chewed up and spat out has, and continues to affect my life every day. My self-esteem, my identity, my friendships, my studies, my work and my intimate relationships. From the day you began to prey upon me and groom me as a child, I immediately withdrew from society and the direction of my life changed.'
73She goes on, 'The impact that you’ve had on me begins at the core level of my identity. I hadn’t begun working out my sexual orientation by the age of 14, so to be exploited by you over a prolonged period of time, being oversexualised by you as a mere sex object to you has left me wondering who I am'.
74Ms Roland goes on to talk about her mental health struggles and her substance abuse. She says she had to stop playing cricket which led to a decline to in her physical and mental health, and to social withdrawal.
75Tragically Ms Roland recently took her own life.
76The sentence I will impose is not a measure of the worth of Ms Roland’s life. No sentence I impose can restore her to her family and friends and undo the tragedy of her death, or alleviate the grief of her family.
77It is my duty in sentencing to take into account the effects of your crimes upon your victim. I take into account the very profound suffering Ms Roland described in her victim impact statement. I make it clear though I stop short of making any direct causal link between your offending and Ms Roland’s death. Both prosecution and defence agreed that that link cannot be established.
Personal circumstances
78I turn now to your personal circumstances. In outlining your personal circumstances, I rely in the main on the psychological report of Ms Carla Ferrari dated 1 September 2023. You met with Ms Ferrari on 10 August 2023.
79You were born in October 1980. You are presently 43 years old.
80You were born into a loving and stable family environment. You enjoy close relationships with your parents, sister and your extended family. You live in a separate dwelling on your parent’s property. Your mother’s health has been poor for around 12 to 15 years which has been a significant source of stress for you.
81Your parents and your sister have written references on your behalf which were tendered at your plea.
82
You attended local primary and secondary schools and completed the VCAL (the vocational equivalent of the VCE), and then studied hospitality at TAFE before doing a four year chef’s course at William Angliss. You worked as a chef for
16 years. You left hospitality because of the long work hours, which became especially difficult for you after you had children.
83You then worked in childcare for several years. You are currently working in a plant nursery. Your employer wrote a reference on your behalf. He describes you as an exceptional employee.
84You have had a number of serious relationships with women since the age of 21. You were in a 5-year relationship with Ms Rachelle Unger which spanned the period of your offending. You told Ms Ferrari that the relationship was abusive with Ms Unger subjecting you to a high degree of coercive control.
85You then had a four-year relationship with Ms Emily Tipper between 2012 and 2017. You have two children together, who are aged 9 and 7 respectively.
86When you and Ms Tipper separated you shared responsibility for the care of your children. After you were interviewed by police in respect of your offending your contact with your children was curtailed. You are currently subject to a family violence order and only permitted to see your children under supervision on Sundays. You told Ms Ferrari that the absence of contact with your children and the criminal charges you face have significantly impacted on your mental health. You have been prescribed an anti-depressant since March 2021
87You have no medical history although you told Ms Ferrari injuries from playing football have caused you memory loss. You instructed your counsel that you have problems related to episodes of long term concussion received when playing sport. You are also receiving steroid injections for a shoulder injury.
88You told Ms Ferrari that you had been prescribed Zoloft (an anti-depressant) during the period of your offending for about one year. You said you were at that time still suffering considerable anguish following a sexual assault upon you by your employer which occurred on a business trip to the United States in 2006 or 2007. You told Ms Ferrari that upon your return to Australia your boss threatened you not to report the incident.
89You sought help from a psychologist about a year after the incident, but you disengaged after only a few sessions. You got a referral from your GP to another psychologist in the context of the current charges and have had over 20 therapy sessions between April 2021 and November 2022.
90You have never used drugs. You have at times been a heavy drinker and you began drinking daily after you were charged for this offending. You recognised your drinking was becoming problematic and stopped drinking on New Year’s Eve 2022 and have not relapsed.
91You have no prior convictions and no matters pending.
92On the current charges you told Ms Ferrari you were drinking heavily and your relationship with Ms Unger was not good. You told Ms Ferrari you had not dealt with the impact of your former employer’s sexual assault upon you and in this context your mental health was poor.
93You said you did not consider the legality of your actions at the time. You said you felt a deep sense of remorse for your treatment of the victim, and said 'the realization that [your] behaviour was inappropriate and hurtful and is particularly distressing , having been through an incident of sexual assault yourself as an adult and understanding how this continues to impact upon [you]'.
94Ms Ferrari conducted a number of tests. Based on your presentation and her testing she assessed you as having mild symptoms of anxiety which did not reach the diagnostic threshold for a generalised anxiety disorder. Your testing scores indicated you were experiencing a mild level of depression, likely referable to your current circumstances, and not indicative of a major depressive disorder.
95Your testing scores did however indicate that you met the threshold for a diagnosis of PTSD.
96Ms Ferrari gives the opinion that you were presenting with PTSD which appeared to have developed after you were sexually assaulted and which had deteriorated during the period of your abusive relationship with Ms Unger. Ms Ferrari says, 'In individuals with PTSD, their symptoms fluctuate in intensity and frequency, however they are particularly prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues.'
97Ms Ferrari gives the opinion that you were likely to experience prison as more onerous than an individual without your mental health condition. She gives the opinion that your PTSD, which requires consistent and specialised interventions, may not be adequately treated in a prison environment.
98Ms Ferrari assessed you as a low risk of reoffending.
99A letter was also tendered from Melanie Williams, psychotherapist and counsellor, who spoke to you at one session on 4 October 2023 and who read Ms Ferrari’s report. She gives the opinion that you may be living with undiagnosed Attention Deficit Hyperactivity Disorder (ADHD) and Obsessive Compulsive Disorder (OCD) but this is only a preliminary opinion based on one session.
Submissions
100I turn now to the submissions of the parties, and I begin with matters relied upon in mitigation of sentence and raised with me by your counsel, Mr Sawyer.
101First, that you come before the Court for the first time as a mature offender with no prior criminal history and as a person of otherwise good character.
102Secondly, on your plea of guilty, which in addition to its utilitarian value, is also indicative of remorse on your part and which entitles to you to a significant mitigatory discount in accordance with the principles set out in the case of Worboyes.[3] Mr Sawyer also submitted that I should regard your plea as an early one, given that you initially faced 65 charges and a period of negotiation was inevitable before resolution could be achieved, and in any event you pleaded guilty before trial and before any witness was required to give evidence, there having been no committal hearing in this matter.
[3] Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)
103Thirdly, on the delay, in particular the delay between your arrest and being charged, Mr Sawyer submitted that you have experienced considerable anguish with this matter hanging over your head, heightened because you are a first time offender, and further you have not committed any further offences during this period.
104Fourthly, he submitted that you had a solid employment history and family support and that I should assess your prospects of rehabilitation as good.
105Finally, he relied on the report of Ms Ferrari as enlivening Verdins[4] limbs 5 and 6.
[4] R v Verdins [2021] VSCA 169 (“Verdins”)
106Mr Sawyer submitted that in all the circumstances a short term of imprisonment, in combination with a lengthy correction orders could meet all the various objectives of sentencing.
107Ms Goding, on behalf of the Director, submitted that your offending was serious and involved a breach of trust, was protracted, and involved pre-planning on occasion. She submitted you subjected your victim to brazen sexual offending which involved an introduction to extreme sexual practices, and which exposed her to the risk of sexually transmitted disease. She submitted each of the charges was a rolled up charge encompassing multiple incidents.
108If sentenced to a term of imprisonment on Charges 1 and 2 you fall to be sentenced as a serious sexual offender on Charges 3 and 4, and community protection must be regarded as the principal purpose for which the sentence is imposed. The prosecution did not seek a disproportionate sentence.
109Ms Goding disputed that your plea of guilty should be regarded as an early plea but accepted the principles in Worboyes remain applicable.
110She accepted on the basis of Ms Ferrari’s report that Verdins limb 5 had some application in sentencing you, but submitted the material fell short of establishing that there is a serious risk of imprisonment having a significant adverse effect on your mental health.[5]
[5] Ibid, Verdins limb 6
111Ms Goding submitted that a term of imprisonment consisting of a head sentence and a non-parole period was the only disposition reasonably available.
Objective Gravity and Moral Culpability.
112I turn now to my own assessment of the objective gravity of your offending and your moral culpability.
113You exploited the trust and friendship of Ms Roland, and also the trust of her mother, who approved you as a role model to her daughter. Ms Roland was only 14 when your abuse began and was just at the beginning of her development as a sexual being and her transition into adulthood. Instead of supporting her, you abused her and indulged your own sexual appetites at her expense over a prolonged period. You subjected her to numerous occasions of sexual touching and penetrative sex. You offended against her in cars, and in open spaces. You subjected her to invasive and degrading sexual practices and you have clearly subjected her to sexual experiences that were beyond her maturity, and which have caused her lasting harm.
114You were aware that what you were doing was wrong, although I accept the submission of your counsel that your understanding of the wrongfulness of your conduct has increased over the years, as has your appreciation of the effects of your offending on the victim.
115One of the benefits to you by virtue of your plea of guilty is that you are to be sentenced on these charges in accordance with a single maximum penalty, however in assessing the gravity of these charges and your moral culpability, I take into account that they involve multiple incidents and the sentence I impose must be reflective of the full criminality of your offending.
116Your offending is objectively very serious offending. Your moral culpability for the offending is high.
Application of Sentencing Principles.
117I turn now to consider the applicable sentencing considerations in your case and my conclusions.
118I have referred to the objectively very serious nature of your offending and your high moral culpability.
119I take into account also the effects of your offending on Ms Roland. The Courts now well recognise the enduring harm childhood sexual abuse causes and that it, 'constitutes an egregious breach of the moral standards of the community'.[6]
[6] Hall (a pseudonym) v The King [2023] VSCA 221 at [43]
120The sentencing principles of general deterrence and denunciation are the predominant sentencing considerations in a case involving child sexual abuse. I must denounce your conduct on behalf of the community and the sentence I impose must send a clear and unequivocal message that the sexual abuse of children will not be tolerated by the courts.
121I accept the submission of your counsel for the reasons he articulated that you now pose a low risk of re-offending and that your rehabilitation has in fact been demonstrated. I accept that the sentencing principles of specific deterrence and community protection carry very little weight in sentencing you.
122I take into account your plea of guilty and sentence you in accordance with the principles set out in the case of Worboyes.
123
I accept that your plea of guilty as well as its utilitarian value is indicative of some remorse on your part, and I make this finding in conjunction with your statements of remorse made to Ms Ferrari. I have stated, but I repeat I accept the submission that your insight into the wrongfulness of your conduct and its effects of
Ms Roland has developed over the years with your own increasing maturity.
124On the basis of Dr Ferrari’s report, and in particular her conclusions about your PTSD, I accept that there is some modest application of Verdins limb 5 in your case. That is, you will find prison more onerous than someone without your mental health difficulties However, I accept the prosecution submission that there is insufficient evidence before me to conclude that there is a serious risk of prison having a significantly adverse effect on your symptoms.
125You fall to be sentenced as a serious sexual offender on Charges 3 and 4 the Court is therefore required to consider protection of the community as the principal purpose for which sentence is imposed. The Court is also required to impose cumulative sentences unless otherwise ordered. The principle of totality is not displaced by the application of the serious sexual offender provisions.
126Totality is an important sentencing consideration given you face a number of very serious charges, all potentially attracting significant terms of imprisonment. I must sentence you to an overall head sentence and non-parole period which reflects the totality of your offending.
Sentence and Orders.
127Taking into account all the matters I am required to under the Sentencing Act and matters personal to you I intend to sentence you as follows. You need to stand up now, Ms Goldsmith.
128On Charge 1 you are convicted and sentenced to a term of imprisonment of one year and six months.
129
On Charge 2 you are convicted and sentenced to a term of imprisonment of
4 years.
130
On Charge 3 you are convicted and sentenced to a term of imprisonment of
2 years and 6 months.
131
On Charge 4 you are convicted and sentenced to a term of imprisonment of
2 years.
132Charge 2 is the base charge. I direct that 1 year of the sentence on Charge 3 and 6 months of the sentences on Charge 1 and Charge 4 be served cumulatively upon charge 2 and upon each other. That makes a total effective sentence of 6 years' imprisonment. I direct that you served a non-parole period of 4 years before you are eligible for parole.
133You are sentenced as a serious sexual offender on Charges 3 and 4 and I direct that be entered into the records of the Court.
134Pursuant to section 18 (4) of the Sentencing Act I declare that you have served nil days of the sentence I have imposed.
135Pursuant to section 6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to a term of imprisonment of 8 years with a non-parole period of 6 years.
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